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Digitized  by  the  Internet  Archive 

in  2007  with  funding  from 

IVIicrosoft  Corporation 


http://www.archive.org/details/admiraltyjurisdiOOcoheiala 


ADMIRALTY 


JURISDICTION,  LAW,  AND    PRACTICE. 


ADMIRALTY 
JURISDICTION,  LAW,  AND  PRACTICE. 

tOitl)  an  SJppentiijr, 

CONTAINING    RULES,    STATUTES,    AND    FORMS. 


By   M.   M.   COHEN, 

PBOFESSOR    OP    COMMERCIAL    LAW,     EQUITY,    AND    ADMIRALTY    Ilf    STRAIGHT 

UKIVEUSITY;     CHAIRMAN  OF  SECTION   ON   JURISPRUDENCE  131  TUB 

HEW  OKLEANS  ACADEMY  OP  »CIS1ICE8;    ETC. 


"  SimpIiciUs  legibus  arnica." 

JosmcuK,  IKST.  8.  2.  8. 


BOSTON: 
SOULE     AND     BUGBEE, 

1883. 


Copyright,  1883, 
By   M.    M.    Cohen. 

T 
in3 


Univebsity  Press  : 
Sobs  Wilson  and  Son,  Caubbidgs. 


TO 


PAUL  FOURCHY,  Esq., 

PRESIDENT  OF  THE    MERCHANTS'    MUTUAL   INSURANCE    COMPANY  OK    NEW  ORLEANS, 

AND    CHAIRMAN   Of  THE   COMMITTEE   OP  THE   NEW   ORLEANS    BOARD   Of 

U.NDBRWBITEBS    ON    GENERAL    AVERAGE, 


WHOSE   KNOWLEDGE   OF  THE   THEORY  AND   PRACTICE   OF 

INSURANCE    AND    MARITIME    LAW 

IS   UNSURPASSED, 

€\}isi  Book 

IS    RESPECTFULLY    DEDICATED. 


(o[^^^ 


PREFACE. 


It  is  proper,  perhaps,  to  state,  as  showing  the  au- 
thor's qualifications  for  this  work,  that  he  has  been  ex- 
tensively engaged  in  practice  in  the  Admiralty  Courts, 
and  that  he  has  delivered  courses  of  lectures,  as  "  Pro- 
fessor of  Commercial  Law,  Equity,  and  Admiralty,"  be- 
fore one  of  the  incorporated  law  schools  at  the  South. 
The  favor  with  which  these  lectures  were  received,  both 
by  the  students  and  by  experienced  members  of  the 
profession,  prompted  the  preparation  and  publication 
of  this  book. 

No  effort  has  been  spared  to  bring  the  matter  within 
as  small  a  compass  as  was  consistent  with  a  thorough 
and  comprehensive  treatment  of  the  subject 

The  numerous  notes  of  cases  which  the  author  had 
made  for  his  own  use  in  practice  have  been  revised 
and  condensed  so  as  to  preserve  the  proper  proportions 
between  the  different  parts ;  and  great  pains  have  been 
taken  to  eliminate  all  that  would  not  be  of  practical 
value  to  the  bench  and  the  bar. 

The  author  desires  to  acknowledge  his  indebted- 
ness to   the  lucid  treatise  by  Edwyn  Jones,  Esquire, 


VIU  PREFACE. 

entitled  "  The  Law  of  Salvage  as  administered  in  the 
High  Court  of  Admiralty  "  (London,  1870).  His  thanks 
are  also  due  to  Mr.  Justice  Woods,  of  the  United  States 
Supreme  Court,  for  the  loan  of  unreported  opinions  by 
himself  and  Mr.  Justice  Bradley;  to  Circuit  Judge 
Pardee  and  District  Judge  Billings,  both  of  whom 
courteously  and  promptly  permitted  him  to  tempora- 
rily withdraw  records  from  their  respective  courts ;  to 
Joseph  P.  Hornor  and  Charles  S.  Rice,  Esquires,  who 
kindly  placed  their  large  and  select  libraries  at  his 
disposal ;  to  Judge  Magrath,  of  South  Carolina,  for 
certain  of  his  unreported  decisions ;  and  to  Dr.  James 
Burns,  the  ripest  scholar  of  his  acquaintance,  and  from 
whom  he  has  received  invaluable  aid. 

Out  of  a  large  number  of  admiralty  cases  in  the 
District  of  Louisiana  the  reader  will  find  here  printed, 
for  the  first  time  in  any  book,  interesting  and  impor- 
tant decisions  by  Justices  Bradley  and  Woods,  of  the 
United  States  Supreme  Court,  and  by  other  very  able 
and  learned  Judges,  some  decrees  as  recent  as  the  month 
of  February,  1883. 

The  Index  may,  by  some,  be  objected  to  as  too  full 
and  minute ;  but  a  long  and  large  experience  inculcates 
the  lesson  that,  in  the  exigencies  of  JVisi  Prim  trials, 
this  is  a  fault  which  "  leans  to  Virtue's  side." 

M.  M.   C. 

New  Ohleaks,  March,  1883. 


TABLE    OF   CONTENTS. 


PAOB 

Index  to  Cases  Cited xv 


CHAPTER    I. 

JURISDICTION. 

Sect.  I.    District  Courts 1 

II.     Navigable  Waters 4 

III.  Matters  of  Contract 9 

IV.  Plea  to  the  Jurisdiction 23 

V.     Circuit  Courts 24 

VI.     Supreme  Court 25 

VII.     Sources  of  Admiralty  Law 26 

VIII.     Principal  Subjects  of  Admiralty  Jurisdiction      ....  20 

IX.     Special  Subjects  of  Admiralty  Jurisdiction 27 


CHAPTER    II. 

SALVAGE. 

Sect.  I.    Ingredients  of  Salvage 36 

II.     Who  may  claim  as  Salvors 54 

III.     Different  Sets  of  Salvors 77 

rV.     Amount  of  Salvage 87 

V.     Apportionment  and  Delay 135 

VI.     Contribution 165 

VII.     Misconduct  or  Negligence  of  Salvors 171 

VIII.  Detention  of  Property  by  Salvors,  and  their  Lien   .     .     .  182 


TABLE  OF  CONTENTS. 


CHAPTER  III. 

LIENS   OTHER   THAN   SALVORS'. 

Sect.  I.     Custom-House  Duties 189 

II.     Admiralty  Liens 189 

III.  Lien  of  Material-Men 192 

IV.  Priority  of  Liens 197 

V.     Liens  on  Domestic  Vessels 198 

VI.     Lien  of  Builders 199 

VII.     Lien  for  Wharfage 200 

VIII.    Lien  for  Wages 200 

IX.    Divestment  of  Liens 200 


CHAPTER    IV. 


COLLISION. 

Sect.  I.    Definition 206 

II.     Rights.     By  what  Law  regulated 206 

III.  Precaution  to  avoid  Collision 207 

IV.  Duty  and  Obligations  of  Steamers 208 

V.     Steamers  to  avoid  Sail- Vessels 209 

VI.     Rate  of  Speed  of  Steamers 210 

VII.     Obligations  to  slacken  Speed 210 

VIII.     Fog  Signals 211 

IX.     Signal  Lights 212 

X.     Lights  required  by  Statute 212 

XL     Exhibiting  False  Lights 213 

XII.     Faults  by  Omission  to  exhibit  Lights 213 

XIII.  Lights  for  Vessels  at  Anchor 214 

XIV.  Vessels  at  Anchor 214 

XV.     Lookout 215 

XVI.     Rules  of  Navigation 216 

XVII.     River  Navigation 217 

XVIII.     Sail- Vessels  meeting 218 

XIX.     Steamers  meeting 218 

XX.     Steamer  meeting  Sail- Vessel 218 

XXI.     Vessel  to  hold  her  Course 219 

XXII.     Vessels  overtaking 220 

XXIII.  Departure  from  Rules 220 

XXIV.  Error  lu  Extremis .221 


TABLE   OF  CONTENTS. 


XI 


Sect.  XXV.  Negligence 222 

XXVI.  Faults 223 

XXVII.  Inevitable  Accident 223 

XXVI I [.  Contributory  Negligence 224 

XXIX.  Burden  of  Proof  of  Fault 224 

XXX.  Liability  for  Damages 224 

XXXI.  Personal  Liability 224 

XXXII.  Liability  when  Pilot  on  Board 225 

XXXIIL  Liability  of  Tug  and  Tow 225 

XXXIV.  Obstruction  of  Channel 225 

XXXV.  Limitation  of  Liability 227 

XXXVI.  Remedy 227 

XXXVIL  Rule  of  Damages 2l>7 

XXXVIII.  Allowance  for  Repairs 228 

XXXIX.  Allowance  for  Demurrage 228 

XL.  Allowance  for  Ix)ss  or  Damage  to  Cargo      ....  229 

XLI.  JjOss,  when  divided 229 

XLII.  Apportionment  of  Damages 229 

XLIII.  Lien  for  Damages 230 


CHAPTER    V.      • 

SEAMEN. 

Sect.    L     Their  Rights  and  Obligations.  Who  are  Seamen  .     .     .  231 

II.     Their  Power  to  Contract 234 

III.  Right  to  Damages  and  Wages 236 

IV.  Lien  for  Wages 239 

V.     Who  are  Mariners 210 

VI.    National  Vessels 241 


CHAPTER    VI. 

MATERIAL-ilEN. 

Sect.    I.     Their  Liens 242 

II.     Who  are  Material-Men 242 

III.     Contracts 242 

rV.     Suits  by  Material-Men 244 


Xll  TABLE  OF  CONTENTS. 

CHAPTER    VII. 

PRACTICE  AND   PLEADING. 

Sect.    I.     Proceedings  to  Recover 246 

II.     Forms  and  Modes  of  Proceeding 251 

III.  Pleading 253 

IV.  Of  Tender 260 

V.     Rule  10  of  the  United  States  Supreme  Court  in  Admiralty  262 

VI.     Practice  in  Criminal  Cases 265 

CHAPTER    VIII. 
EVIDENCE. 

Sect.    I.     General  Rules 266 

II.     State  Laws 266 

m.     Mode  of  Proof 266 

IV.     In  Louisiana 268 

V.     Depositions 268 

VI.     On  Appeal 269 

VIL    Burden  of  Proof 271 

CHAPTER    IX. 
TRIAL. 

Sect.    I.     Referees 274 

II.     Bill  of  Exceptions   .     .     .     .    ' 274 

III.  In  the  Louisiana  District 274 

IV.  New  Trial 276 

V.    Continuance 277 

CHAPTER    X. 

DECREE. 

Sect.    I.     On  Appeal 278 

II.     "When  Interest  allowed 279 

m.     Rehearing 279 

IV.     Marshalling  Assets 280 

V.     Admiralty  Rules  as  to  Decrees 281 


TABLE  OF   CONTENTS.  XIU 


CHAPTER    XI. 

COSTS    AND   FEES. 

SbCT.    I.     Costs 284 

U.    Fees 292 


CHAPTER    XII. 

APPEAL. 

Sect.    I.     Appeals  from  District  Court  to  Circuit  Court   ....    295 

II.     Appeals  from  Circuit  Court  to  Supreme  Court      .     .     .     306 

III.    Amouut 310 


APPENDIX. 

Admiralty  Rules,  established  by  the  United  States  Su- 

PKKMB  Court 317 

General  Rules  of  Practice  of  the  United  States  Supreme 

Court,  applicable  in  Admiralty 339 

Revised  Statutes  of  the  United  States 344 

Act  of  1875,  as  far  as  applicable  in  Admiralty  ....  353 

Practical  Forms 355 


INDEX  OF  SUBJECTS 455 


INDEX   TO    CASES    CITED. 


PAGE 

Abbotsford,  The  274,  309,  8 1« 

Abby,  The  24 

About  1800  Gallons  Dist.  Spirits  825 
Acorn,  The  44,  64,  66 

Active,  The  297 

A.  D.  Patchin,  The  87,  124, 126,  126 
Adams  v.  Law  344 

V.  The  Island  City  87, 64, 66, 85, 
126 
V.  Steamer  Natchez  &  Cargo  68 
Adirondack.  Tl»e  286 

Adolphe,  The  249, 281 

Adrianople,  The  fW 

Adriatic,  The  816 

Adventure,  The  91, 92 

Africa,  The  113,  121,  123 

African,  The  61 

Agnew  V.  Dorman  284,  297 

Ah  Holin  et  cU.  v.  Steamship  Meta- 

pedia  232 

Aid,  The  88 

Airey  v.  Merrill  801 

Alabama,  The  225 

Alabama  and  Gamecock,  The  215,  282 
Albany  City  Ins.  Co.  v.  Whitney  24 
Albatross,  The  287 

Albert  Schultz,  The  246 

Albion,  The  41,  137,  138,  140,  151 

Albion  Lincoln,  The  40,  69,  84,  169 
Aldebaran.  The  827 

Aletheia.  The  101 

Alexander,  The  66,  71 

Alexander  Wise,  The  224 

Alfen,  The  46,  61,  94 

Alice  Tainter,  The  294 

Alida,  The  200 

Allan,  The  46,  46 

Allen  V.  Blunt  847 

V.  Hitch  301 

V.  Mackay  208,  220 

V.  Newberry  40 


PACT 

Allen,  Stephen,  The 

192,  198 

Alma,  The 

73,  93,  212,  216 

Alonzo,  The 

801 

Amalia,  The 

269 

Amelia,  The 

297 

Amelie,  The 

200,289 

America,  The 

218,  322 

American  Ins.  Co.  v.  Charles  John- 
son 8,  176 
V.  Coster  248 
V.  Canter  76 
Amerique,  The                                  816 
Amethyst,  The  82, 106, 171, 181, 184, 186 
Amis  V.  Pearl                                       340 
Amoskeag  M.   Co.  v.   The  John 

Adams  210, 215 

Amstel,  The  194,  205 

Andalusia,  The  96 

Anders  Knafe.  The  67 

Andrews  v.  Wall  191,  269 

A  New  Brig  821 

Ann  Arbor,  The  10,  14 

Ann  Caroline,  The  208,  228 

Anna,  The  49,  271 

Anna  C.  Pratt,  The  198,  803 

Annapolis,  The  43,  69,  173 

Anne,  The  249,  822,  324 

Anne,  The.  v.  United  States  824 

Anne  Green.  The  62 

Anne  and  Jane,  The  269 

Annie  Childs  261 

Anon.  266 

Antelope,  The  66,  342 

Apollo,  The  287 

Aquila,  The  69, 73,  76, 78, 79,  81, 80, 90. 
91,  104,  105,  188 
Arabian,  The  100 

A  Raft  of  Cypress  Logs        11,  20,  200 
A  Raft  of  Spars  46 

Araminta,  The  148,  293 

Argo.  The  347 

Ariadne.  The  216,  219,  220 

Arizona,  The  136 


XVI 


INDEX  TO  CASES  CITED. 


Arlington,  Tlie  64 

Aroma  Mills,  The  48,  58,  64,  66 

A.  Rossiter,  The  211 

Arthur,  The  68,  113,  123 

Asa  Eldridge,  The  190 

Asa  R.  Swift,  The  321 

Atalanta,  The  341 

Athenian,  The  196 

Atkins  V.  The  Disintegrating  Co.         2 
Atkinson  v.  Woodhall  136 

Atlantic,  The  209,  235,  236 

Atlas,  The    39,  40,  42,  45,  84,  104,  140, 
171,  172,  174,  177,  179,  215,  282 
Atlee's  Case  15 

Attacapas,  The  81 

Augusta,  The  198,  321 

Aura,  The  221 

Aurora,  The         192,  193,  259,  321,  322 
Averill,  The  162 

Avery,  The  330 

Avon,  Tlie  9 

Aztecs,  The  88,  41 


B. 


Backus  V.  The  Marengo  277 

Bacon,  Tlie  Steamboat  97 

Bags  of  Linseed  2,  205 

Baird  v.  Daly  32 

Baker  v.  Hoag  182, 186 

V.  The  City  of  New  York      209, 
213,217 
V.  Hemenway  90,  94 

V.  Smith  271 

Baltimore,  The   139, 142, 143,  222,  227, 
228,  293,  307,  309,  310 
Bank  of  the  United  States  v.  Hal- 
stead  252 
Bank  of  the  United  States  v.  White  253 
Banks  r.  Miller  348 
Banner,  The                                  67,  187 
Banta  v.  McNeil  10 
Barden  v.  The  William  Penn             88 
Barefoot,  The  80,  81,  105,  172,  176,  177 
Baring  v.  Day                             184,  185 
Bark  Cleone,  The                               105 
George  Nicliolaus                 45,  49 
Ilex,  The                                 205 
J.  G.  Paint  &  Cargo                 121 
Joseph  Cunard                          208 
Laura  Russ                               133 
Loveland.  The                         170 
Onore,  The  33 
Penelope,  The                          187 
San  Fernando  v.  Jackson  & 
Manson  29 
Barnet  v.  Day                                     348 
Barney  v.  Eaton                           47,  186 
Baron  Holberg,  The                          210 
Barque  Chusan                                  321 
Barrell  v.  Livingston                          847 
Barrels  of  OU  88 


Bartley,  The 

93 

Batavia,  The 

210 

Batavier,  The 

70,  214,  289 

Bay  City,  The 

293 

Bay  State 

208,209,211 

Bayard  v.  Malcolm 

269 

Beall  V.  Thompson 

349 

Bean  v.  The  Grace  Brown  66 

Beane  v.  The  Mayurka  44,  46,  58 

Bearse  r. Three  Hundred  and  Forty 

Pigs  of  Copper  37,  47,  88, 90, 

124,  186,  271 

Beaver,  The  46,  55,  74,  80,  81,  101 

Beckford,  The  William  88 

Bee,  The  22,  79,  81,  105,  182,  184,  186, 

241) 
Beers  v.  Haughton  252,  253,  332 

Belfast,  The  2,  20,  27,  28,  29,  192,  198, 

199,  227 

Belgenland,  The  Luna  v.  The  22 

Bell  V.  Davidson  349 

V.  Morrison  347,  348 

V.  Newman  347 

V.  The  Anne  89,  91 

Belle,  The  .  206 

Belie  of  Lagos,  The  288 

Belle  Darlington.  The  137,  161 

bello  Corrunes,  The  171, 176, 249 

Benefactor,  The  309,  316 

Benefactor  Steamship  Co.,  The,  v. 

Mount  280 

Benjamin  v.  The  Watchman  55 

Benjamin  Franklin,  The  66 

Bentley  v.  Coyne  219,  221 

Bentley,  The  140 

Bergeuland,  The  4 

Berlin,  The  80,  83,  104 

Betsey,  Tlie  123,  124,  125 

Beulah,  Tlie  149,  151,  154 

Bigler  v.  Walles  343,  345 

Bingham  v.  Morris  340 

V.  Wilkins  318,  331 

Birdie,  The  70,  71 

Birkenhead,  The  211 

Birkley  v.  Presgrave  »  169 

Blackbird  Creek  M.  Co.  7 

Black  Boy,  The  172,  289 

Blackstone,  The  210 

Blackwall,  The      40,  64,  65,  72,  85,  95. 
139,  140,  248,  323 
Blaine  v.  The  Charles  Carter  249 

Blaireau,  The  63,  88, 102, 142, 144, 152, 
153,  174,  177 
Blake  v.  Patten  142 

Blenden  Hall,  The  82,  91,  92,  104,  184, 

186 
Blohm,  The  236,  322 

Blossom,  The  215 

Blue  Wing,  The,  v.  Buckner  212 

Board  of  Commissioners  v.  Gorman  346 
Bolderaa,  The  211 

Bolivar,  The,  v.  The  Chalmette   70,  91 
Bomarsund,  The       39,  41,  67, 179,  180 


INDEX  TO  CASES  CITED. 


XVll 


Bond  V.  Brig  Cora  58,  62,  63, 64.  88,  91, 

102,  139 

Bondics  v.  Sherwood  12-1,  120 

Boom  Company  v.  Patterson  25 

Boon  V.  The  Hornet  325 

Borden  v.  Heirn  8 

Boston,  The  38, 64, 81, 102, 123, 152, 174. 

170,  177,  184,  185,  247,  248,  260,  271, 

284,  325 

Bothnia,  The  259 

Boudereaux  v.  Montgomery  849 

Bouysson  v.  Mtller  318 

Bowen,  The  145 

Bowley  v.  Goddard     124, 125,  127,  128 

Box  of  Bullion,  A  16,  49,  86.  184 

Box  of  Bullion,  Williams  v.  A  102 

Boysson  v.  Carlberg  250 

Bracket  v.  Hercules  821,  331 

Bradley  v.  Bolle  242 

Bradstreet  i\  Potter  342 

Brandt.  The  William  70 

Branston.  The  46,  67,  58 

Brede,  The  65 

Brennan  v.  Steam  Tug  Anna  P.  Torr  22 

Brevoor  v.  The  Fair  Ainerican  176, 184, 

247,  323,  324 

Bridgeport,  The  214 

Brig  Alphonso,  The  38,  46,  93 

Anna  146 

Aurora  825 

Carolina  316 

Cora  49,  142 

C.  W.  Ring  145 

E.  A.  Barnard  204,  205 

Hallen  295.  344 

James  Wells  v.  United  States  340 

Jolm  Gilpin  82,  83 

Langdou  Cheves  321 

Nestor  244, 246 

Susan  67 

Wexford  281 

Briggs  V.  Light'  Boats  170 

V.  The  Merchant  Traders' 

Ship  Loan  &  Insurance 

Association  166 

Bristol,  The  267,  337 

Britain,  The  121,  128,  138 

Briton.  The  112.  248 

British  Consul,  The,  v.  Smith  92 

British  Empire,  The  121,  124 

British  Siiip  Yucatan,  The  133 

British  Steamer  Plainmeller  r.  The 

Steamer  Adirondack 
Britannia,  The 
Brock  V.  Tiie  John  M.  Walsh 
Brockett  v.  Brockett 
Brondc  v.  Haven 
Brooks  V.  The  William  Fenn 


r.  Norris 
Brooks  Borden  et  al.  v.  The  Ship 

William  Penn 
Brothers,  The 


164 
92 
82 
305 
238.331 
41,64. 
140,  145 
345,363 


Brown  r.  Lull 

321 

V.  Pratt 

848 

V.  Stapylton 

168, 

170 

V.  The  Cadinos 

802 

V.  The  Fair  Americar 

I 

89 

V.  Union  Bank  of  Florida 

841 

Buckeye  State,  The 

249 

Buckingham  v.  Burgess 

347 

Buckley  v.  Brown 

14 

Buddicum  v.  Kirk 

847 

849 

Buffalo,  The 

211 

Bull,  Fretz  v.                 4,  14, 

87,88 

254 

Bullock  V.  The  Lamar 

212 

213 

Burke  v.  The  P.  M.  Rich 

323 

Bums,  The 

39 

Bush  V.  The  Alonzo 

801 

Bussard  v.  Catalino 

347, 

348 

Butterfleld  v.  Boyd 

209 

c. 


279 

847 

4,224 

200 
222 


C.  Ackerman,  The 
Cahoon  v.  Ring 
Calisto,  The 
Calkin  v.  United  States 
Calypso.  The 
Camanche,  The  40,  63,  64,  65.  90,  94, 
126,  144,  191 
Cambuston  v.  The  United  States  305 
Campbell  v.  Gordon  841 

Canada,  The  71,  112,  204 

Canal  Boat  Dan  Brown,  The  205 

Cape  Packet.  The  177,  178 

Captain  Carpenter,  for  himself  and 
OflBcers  and  Crew  of  the  Iris,  v. 
French  Ship  Eugenie  50 

Carbaga,  The  193 

Carly  v.  The  Kitty  238 

Cargo  ex  Capella,  The  44,  72 

Galam,  The  247 

Honor.  The     48,  73,  261,  289 
Loodianah,  The  106 

Venus.  The  104,  111 

Cargo  from  Wreck  of  Bark  Ed- 
wards 105 
Cariisle,  The  222 
Caroline,  The  62,  64,  137,  324 
r.  The  United  States  324 
Carolus,  The  207 
Carpenter  v.  The  Island  City  209 
Carrier  Pigeon.  The  43 
Carrigan  v.  Pitman  285 
Carrington  v.  Pratt  196 
I'.  Stimpson  347 
Carroll  v.  The  T.  P.  Leathers  81 
Carroll.  The  207,  209.  216,  219,  222 
Cartwell  v.  The  John  Taylor  66 
Case  V.  Woolley 
Cashmere  v.  De  Wolf 
Castletown,  The 
Castro  V.  United  States 


94 

84    Catalina,  The 


2 

24 

104 

840 

880 


XVIU 


INDEX  TO   CASES  CITED. 


Catherines,  The  Two  57,  66 

Cato,  The  122,  137 

Catterina  Chiazzan,  The  251 

Cayenne,  The  81,  315 

Cayuga,  The  221,  228 

C.  C,  The  250 

C.  C.  Van<lerbilt,  The        216,  219,  220 
Centre  v.  Keene  348 

Centurion,  The  21, 37, 47, 66,  76, 89, 123, 
12  i,  126,  139,  142,  173,  186,  247,  248 
Ceres,  Tlie  21 

Cerro  Gordo,  The  134 

Certain  Logs  of  Mahogany  320 

Cetevvayo,  The  288 

Chamberlain  v.  Ciiandler  33,  322 

V.  Ward         213,  223,  227 
Champion,  The  76,  78,  105,  183 

Chancellor.  The  206 

Chapman,  Nicholson  v.         15,  182,  247 
Charles,  The  54,  63,  64,  89,  149 

Charles  Adolphe.  The      70,  71,  72,  174 
Charles  Henry,  The     63,  64,  89,  91,  92, 

139 
Charlotta,  The  92,  184 

Charlotte,  The  38,  39,  55,  60,  62,  71,  72, 
82,  83,  122,  151 
Charlotte  Wylie,  The     45,  74,  107,  142 
Cheeseman,   The,   v.   Two    Ferry 

Boats  4,  5,  10,  14,  15,  39,  169 

Chesapeake,  The  216 

Cheshire,  The  320 

Chesney,  E.  M.,  The  10 

Chester,  The  215,  217 

Chetah,  The  89,311,316 

China,  The  206,  225,  230 

Christina,  The  291 

Chusan.  The  Barque  192,  244,  249,  321 
Circassia,  The,  v.  City  of  Richmond  128 
Circassian,  The     45,  126,  193,  198,  321 
V.  Two  Ferry  Boats  37 
Citizens'  Bank  v.  Nantucket  Steam- 
boat 60,  284 
City  of  Berlin.  The  313 
Carlisle,  The                   212, 215 
Edinburgh,  The  175 
Hartford,  The,  v.  The  Unit  218, 
282 
Paris,  The  210, 211,  213, 219,  221 
Tawas,  The                              197 
Washington,  The   207,  213,  267 
V.  Dennison       345 
Claim  of  Captain  of  the  Iris  74 
Clara,  The                                   214,  247 
Clarence,  The                              212,  259 
Clarisse,  The                     79,  83,  93,  310 
Clarita  and  Clara,  The    37,  44,  54,  214 
Clark  V.  Chamberlain                          185 
V.  The  Dodge  Healey  40,  47,  105 
Clayton  et  al.  v.  The  Ship  Harmony  50, 
56,  58,  89,  185 
Cleadon,  The                                      206 
Clement,  The                                      215 
Cleoue,  The  Bark                             105 


Cleopatra.  The 
Gierke  v.  Harwood 
Clifton,  The 
Clintonia,  The 
C.  M.  Titus,  The 


183 
341 

38,  87.  261 

38,  87,  294 

175 


Coast    Wrecking    Co.  v.  Phoenix 

Ins.  Co.  254 

Coffin  V.  Jenkins  326 

V.  The  Brig  Akbar  53 

V.  The  John  Shaw     39,  127,  248 
Coggins  V.  Helmsley  32 

Cognac,  The  211 

Cohen  r.  The  Mary  T.  Wilder  212 

Coldstream,  The  240 

Gohma,  The  135,  151 

Collector,  The  279,  298,  299,  303 

Collier,  The  61 

Collins  V.  The  Fort  Wayne  120, 124, 126, 

186 
Colorado,  The  207,  210 

Columbia,  The  43,  80,  83,  137,  151,  220 
Columbine,  The  137,  212 

Columbus,  The  68,  153,  224 

Comet,  The  216 

Comings  v.  The  Ida  Stockdale  5 

Commander  in  Chief,  The         229,  327 
Commerce,  The  6,  27,  229 

Comus,  The  94 

Conckling  v.  The  Harmony         64,  170 
Concord,  The  189 

Concordia,  The  211,221 

Congress,  The  169 

Conncmara,  The  297 

Consett,  The  292 

Constitution,  The  31 

Continental,  The  212,  213,  216,  222,  229 
Cook  V.  Burnley  348 

Cope  et  al.  v.  Vallette  Dry  Dock  Co.  16 
Cora,  The  59,  152 

Cordes  v.  The  Niagara  227 

Cornelius  Grinnell,  The         89,  99,  100 
Coromandel,  The  42,  45,  79 

Corsica,  The  216,  219,  221 

Corsley  v.  White  214 

Corwin  &  Others  v.  Bark  Jonathan 

Chase  46,  70 

Cosmopolitan,  The  79,  83,  105 

County  of  Mobile  v.  Kimball  226 

Cox  V.  Murray  205 

Craig  V.  Hartford  308 

Crawford  v.  The  William  Penn         322 
Crockett  v.  Newton  219,  221 

Cromwell  v.  Island  City  176 

V.  Schooner  Theresa  Wolf  257 
Cross  V.  The  Bellona  89,  91 

Crusader,  The  9,  235 

Crus  v..  The  113,  123,  128 

Cuba,  The  87,311 

Culbertson  v.  Don  207 

V.  Shaw  14,  207 

V.  The  Southern  Belle   214 
Cumberland,  The  43 

Cunningham  v.  Hall  200 


INDEX  TO  CASES  CITED. 


XIX 


Cunningham  v.  Otis  349 

Curtis  V.  Central  U.  R.  847 

Cushman  i^.  Uyan  271,  272 

Custer,  Tlie  VJ'6,  l'J4 
Cutler  I'.  Kae                   21,  29,  190,  ;i42 

C.  W.  Kinpr,  Tlie  145 

Cynosure,  Tlie  208 

Czarina,  The  47,  146 


D. 

Dade  r.  Young  347 

DaUtrorii  v.  Schooner  E.  M.  David- 
son 196 
Dantzic  Packet,  The  78,  172,  182,  186 
Davey  v.  The  Mary  Frost  66 
David  Pratt,  The  327 
Davis  V.  Child  246 
V.  The  Seneca  296,  298 
Davis,  The  170,  323 
Davis  &  Brooks  v.  The  Seneca  800 
Davison  v.  Sealskins  62 
Dawn,  The  44 
Debutts  V.  McCuUoch  847 
Defiance,  The  138 
Delambre,  The  113 
Delaware,  The  90,  94,  252,  324 
De  Lovio  v.  Boit  4,  13 
Delphos.  The  38, 152 
Denia,  The  89 
Derelict  Property,  The  King  v.  45 
De  Sraet,  The  203 
Despatch,  The  210 
Deveron,  The  89,  100,  161 
De  Wolf  V.  Howland  198 
Diana,  The  216,  287 
Dick  t:  Uunnels  847 
Dido,  Brig,  The,  Hope  v.  66 
Diker  v.  St.  Joseph  29 
Dinsmore  v.  Maroney  347 
Dispatch,  The  259 
Distilled  Spirits  825 
Divina  Pnstora,  The  249 
Dodge  V.  Israel  849 
Dodge  Healy,  The  40 
Dolphin.  The  28 
Don  I'.  Lippman  207 
Dominy  r.  The  Anchors  86,  121,  128 
Door  V.  Pacific  Insurance  Co.  29 
Dorothy  Foster,  The  62,  170 
Dos  Hermanos,  The  341 
Dosseitei,  The  67,  83,  172.  178 
Dove,  The  170.  257 
Dove  and  Cargo,  The  174 
Dowthorpe,  The  247 
Draco,  The  823 
Drake  v.  The  Oriental  805 
D.  S.  Gregory,  The  229 
D.  S.  and  Peri.  The  297 
Duke  of  Manchester,  The  172. 176. 177. 
179,  180,  287 
Dnlany  r.  Peragio  66 


Dumfries,  The  206 

Duncan  r.  United  States  252 

Dupont  De  Nemours  &  Co.  u.  Vance 

It  til.  28,  258,  259,  285 

Dutcher  i'.  Woodhall  298 

Dvgden,  The  68,  177,  289 


E. 

Eads  V.  The  Bacon  4, 184, 323 

Eagle.  The  6.  206 

F:arl  Grey,  The  94,  137,  161 

Earl  of  Eglinton.  The  106 

Eastern  Monarch.  The  46,  72.  9.S 

Eastern  Star,  Tlie  321 

E.  C.  Scranton,  The  207,  218 

Eckford  v.  Wood  251 

Edith,  The  193,  198,  199,  200,  281 

Edmondson  v.  Barrel  347,  348 

17.  Bloomshire  340 

Edmund  Levy,  The  218 

Edward  r.  Elliott  198,  243 

Edward  Hawkins,  The  39,  287 

Edwards  v.  Childs  240 

Effort,  The  78,  92,  104,  184,  185,  186 
Eleanor,  The  45,  06,  99 

Eleanora  Charlotta,  The  173.  181. 

183,  201 
Electra,  The  211 

Eledona,  The  198 

Elise,  The  113,  122 

Eliza.  The  43 

Eliza  Ladd;  The  242 

Eliza  Mallory,  The  138 

Elizabeth,  The  66,  88 

Elizabeth  and  Jane,  The  81,  91,  182 
Elizabeth  Bibby,  The  43 

Ella  Constance.  The  87,  98 

Ella  Warley,  The  320 

Elliott  V.  The  Leipsic  292 

Elliotta.  The  71,  104 

Ellis,  W.  H.,  V.  The  Tornado  108 

Ellora,  The  69,  70 

EIniira  Sheppard,  The  12 

Elvira,  The  69,  178 

El  well  V.  Martin  267 

Emblem,  The  38,  49, 170,  171, 184. 186, 

247 

Emerson  v.  Howland  238 

V.  The  Pandora  40 

Emilv,  The  215,  220 

Emily  B.  Souder,  The    47,  71,  72,  195, 

196 
Emma.  The  123,  165,  107,  220,  221 

Empire  State,  The  209.  211,  215.  216 
Emulous,  The  37,  47.  81.  88.  90.  93,  94, 
124,  125,  126,  169.  186,  248 
Enchantress,  The  121, 124, 137, 149, 151, 

164,  168 
Endeavor.  The  84,  86 

Endner  v.  Greco  11 

England,  The  269,  310 


XX 


INDEX  TO  CASES  CITED. 


Enterprise,  The     65, 197,  296,  304,  305 
Eolitles,  The  210 

E.  O.  Maliby  v.  Steam  Derrick  Boat   48 
Erie  Railway  Co.,  Seaman  v.  The     48, 
184,  185 
Essex  F.  &  M.  Ins.  Co.,  The  9 


E.  U.,  Tlie 

Eugene,  The 

Eugenie,  The 

Euphrates,  The 

Europa,  The 

Evangeline,  The 

Evangelisimos,  The 

Evans  v.  Charles 
V.  Hettick 

Ewbank,  The  Henry  40,  42,  49,  04,  81 
84,  88,  89,  91,  102,  137,  140,  141,  144, 
149,  162,  173,  18(5,  248,  249,  284,  286, 

298 


40,  41,  42,  84 

68,  82,  184,  185,  186 

38 

341 

209,  210,  217 

220,  222 

297 

248 

347,  34!) 


Ewell  Grove,  The 

73,  92, 

104,  106 

Exchange,  The 

94 

Ex  parte  Beck 

348 

Cahoone 

247 

Crane 

252 

Easton  3,9,18,82,194,200,250 

Gordon 

10,32 

Hagar 

28 

Humphrey 

848 

McNiel 

199 

Milwaukee  R. 

R.  Co. 

344 

Sawyer 

307 

Sibbald  v.  United  States     342 

Slay  ton 

249 

Story 

342 

Experiment,  The 

841 

F. 

Fair  American,  The  175 

Fairbanks,  The  216,  220,  221,  222 

Falcon,  The  218,  222,  228,  282 

Fannie,  The  209,  215,  219,  222 

211 

236,  239 

215,  229 

301 

209 

210 

73,90 

67 

79 

79 

190 

254 

14 

173 


Fannie  Buck,  The 

Fannie  Gardner,  The 

Farragut,  The 

Farrell  v.  Campbell 

Fashion  v.  Wards 

Favorita,  The 

Favorite,  The 

Felix,  The 

Fenix,  The 

Fennick,  The 

Feronia,  The 

Ferris  v.  Steam  Tug  Alida 

Ferry  Co.  v.  Beers 

Fielden,  The 

Fifty  Thousand  Feet  of  Lumber  20,  45, 

251 
Firefly,  The  89,  112,  120,  121,  122 

Flaherty  v.  Doane  194,  239 

Flanagan  v.  Ship  Queen  of  the  East  194, 

272 


Flanders  v.  Tripp 
Fleece,  The  78,  82, 

Flinn  v.  The  Leander       81,  91,  92, 
Flora,  The  216, 

Florence,  The  55,  80,  103,  104,  174, 


Folger  V.  Shaw 
Forbes  v.  Parsons 
Fortitude,  The 
Fortuna,  The 
Fortune,  The 
Foster  v.  Sampson 

r.  The  Miranda 

V.  The  Pilot 
Foster,  The 
Foster,  The  H.  B.   8,  37, 49,  70,  71, 


298,  302, 

236, 

194, 

91,  92,  104, 


208, 


Four  Cribs  of  Lumber 

Fowler  v.  Merrill 

Fox  V.  The  Lodemia 

Frances,  The 

Frances  Mary,  The  92, 

Frances  and  Eliza,  The  46, 

Frank  A.  Hall,  The 

Frank  Moffatt,  The  211, 

Franklin,  The 

Frederick,  The  65,  66, 

Free  State,  The  210, 

Freeman  v.  Buckingham  190, 

Freemont,  The 

Freight  Money  of  the  Anastasia 

Fremont,  United  Slates  v.         340, 

French  v.  Shoemaker  343, 

Fretz  V.  Bull  4,  14,  37,  88, 

Friends,  The        187,  208,  216,  217, 

Friendschaft,  The 

Fiuichal  Baptista,  The 

Furnies  v.  The  Magoun 

Fusilier,  The  88,  99, 107, 

Fyenoord,  The 


107 
176 
221 
177 
804 
322 
287 
341 

89 
238 
213 
821 

71 
125, 
126 

20 
847 
828 
341 
104 
289 

72 
213 

46 
261 
211 
225 
224 
177 
342 
345 
254 
220 
341 

68 
331 
311 
206 


G. 

Gage,  The  141 

Gaines  v.  Travis  252,  305,  318,  324,  332 
Galatea,  The  65,  68,  69,  71,  209 


Galaxy,  The 

91 

Gammell  v.  Skinner           232, 

326,  328 

Ganges,  The 

61,  162 

Gardner  v.  Isaacson 

318 

Garrett  v.  Woodward 

848 

Garrison  v.  Cass  Co. 

840 

Garrison,  W.  F.,  The 

72, 140 

Gastrel  v.  A  Cypress  Raft 

11 

Gate  City,  The 

239 

Gates  r.  Johnson 

823 

Gazelle,  The 

228 

General  Buel,  The 

32 

Cass,  The         5,  10, 

11,  15,  33 

Jackson,  The 

198 

Palmer,  The 

05 

Smith,  The           194, 

243,  321 

Generous,  The 

113 

INDEX  TO  CASES  CITED. 


XXI 


Genesspe  Chief,  The  4.  6, 16, 40, 42. 80, 
84,  85,  88,  140,  209,  '210,  211,215,216. 
lily,  220,  221,  222 
George,  The  2-U\ 

George  Arkle,  The  250 

Dean,  The  90,  lOG,  1;S7 

Law,  Tlie  218 

NicholaiiB,  The  88,  80 

T.  Kemp  206 

Georgia,  Tlie  833 

Georfjianna,  The  89 

German  v.  United  States  340 

Gertnitie,  '1  he  79,  182,  l»i 

Giacomo.  Tlie  38,  287 

Gil  f.  Tlie  Continental  821 

Gilliam  i-.  The  Tyler  181 

(Jiihoolcy,  The  IVnn.  U.  R.  Co.  t;.  202 
Gills  V.  The  Cyntliiii  6tJ 

Gilman  <-.  City  of  Philadelphia  220 
Gilmore  r.  Philadelphia  7 

Gilpins  V.  Conseqita  840 

Girolamo,  The  210 

Glasgow  Packet,  The    78,  82,  172,  182. 
184,  185,  25'J,  287,  288 
Glenduror,  The  814 

Glengaher,  The  02 

Glohe.  The  198,  190 

Gloria  de  Maria  288 

Gloria  Deo,  The  212 

Glory,  The  82.  83,  173,  288 

Gloucester  Ins.  Co.  v.  Younger  20,  305 
Gold  Hunter,  The  27 

Golden  Gate,  The  200 

Golomlrina,  The  44,  47,  137,  138,  140 
Golubchick,  The  287 

Goodhue  v.  Bartlett  847 

Goodrich  v.  The  Domingo  230 

Goodvcar  v.  Providence  252 

Gould  v.  Gould  840 

Governor,  The  217 

Governor  Raffles,  The  46,  65 

Graaf  von  Rechteren,  The  221 

Grace  Brown,  The  66 

Grace  Girdler,  The    207,  220,  221,  229, 

336 
Graces,  The  67,  71,  84, 112,  128, 187 
Gran  Para,  The  330 

Grand  Republic.  The  204 

Gninite  State,  The'  214,  228 

Grant  v.  Norway  273 

Grapeshot,  The  191,  192, 108, 194. 195. 
199,  278,  321,  322 
Gratitude,  The  218 

Gravina.  The  01 

Gray  /•.  Chicago,  &c.  R  R.  Co.  252 
Gray  Eagle.  The  216,  222,  223,  229 
Grayson  v.  Virginia  252 

Great  Kastern,  The  210.  221 

Great  Republic,  The  220,  229 

Green  v.  The  Adelaide  212 

V.  United  States  846 

V.  Van  Buskerk  844 

Greening  v.  The  Gray  Eagle  213 


Gregory,  D.  S.,  The 

210 

Greig  v.  Reade 

293 

(iriggs,  Joseph  C,  The 

38 

Grotius,  The 

298, 

299, 

840 

Gudrun,  The 

8;i 

tiuerriere,  The 

147 

Guiding  Star,  The 

196 

Gulnare,  The 

212 

Guppy  V.  Brown 

349 

Gurney  i-.  Crockett 

205 

234 

Gustavia,  The 

192, 

105 

327 

Guy,  The 

192 

321 

Gwin  V.  Breedlove 

340 

H. 

Haidee,  The 

60 

Ilain  V.  The  North  America 

214 

Hale  V.  Washington  Ins. 

Co. 

322 

Hall  V.  Little 

214 

Hainan  v.  Fowle 

322 

Hamilton  r.  Davis 

176 

186 

Hamilton  E.  Towie  v.  Great  Eastern  57 
Hamilton,  James,  f. The  Vicksburg, 

Shreveport  &  Pacific  R.  R.  Co.         6 
Hammond  t;.  The  Essex  F.  &  M. 

Ins.  Co.  237,  321 

V.  The  Insurance  Co.      202 

Hand  v.  The  Elvira  60.  88,  89,  185 

Haney  v.  Baltimore  &  P.  Co.    208,  222, 

223 
V.  The  Louisiana  209 

Hanger  v.  Abbott  846,  353 

Hanniih  Park,  The  222 

Hannibal,  The,  r.  Queen  44 

Hansa,  The  210 

Happy  Return,  The  73,  90 

Harbinger,  The  38,  70 

Harley  o.  Bars  R.  R.  Iron  120,  124,  126 
Harner  v.  Bell  195 

Harper  v.  The  New  Brig  328,  331 

Harriet,  The  214,  312,  313 

Harriot,  The  61,  289 

Harris  v.  Wall  347,  348 

V.  Wheeler  280, 801, 304, 308,  324 
Harrison,  The  200 

Harrison  v.  Nixon  252 

Hartford  v.  Jones  182,  184,  1^5 

Haswell,  The  259 

Hathaway  v.  Jones  236 

Hattie  Ross,  The  216 

Havre,  The  825 

Hawkins  v.  Andy  62 

Hawkins,  Edward,  The  89 

Hawthorne  i:  United  States  340 

Havden  v.  The  Cochrane  73 

Hayes,  H.  M  ,  The  44 

Hayford  v.  Griffith  294,  298,  300 

Hazlett  V.  The  Enterprise  321 

II.  B.  Foster,  The  87,49,  70,71,  81, 125, 

126 
H.  D.  Bacon,  The  124,  125.  184 

Hebe,  The  05,  66,  107,  259 


xxu 


INDEX  TO   CASES   CITED. 


Hector,  The  88,  89,  106, 173 

Hedwig,  The  201,289 

Helen  V.  George,  The  120,  121, 122, 123, 

124 
Helene,  The  141 

Hemmenway  v.  Fisher  279 

Hendrey  v.  The  Priscilla  92 

Hendrik  Hudson,  The  15,  20,  47 

Hennessy  v.  The  Versailles  36 

Henry  Ewbank,  The  40,  42,  49,  64,  81, 
88,  89,  91, 137,  140, 141, 149,  152. 173, 
186,  248,  249,  284,  286,  298 
Hercules,  The  79 

Hermann,  The  211 

Hermon,  The  2:!7 

Hessian  v.  The  Edward  Howard      248 
Hezekiah  Baldwin,  The  10 

Hickman,  The  260,  2'.K) 

Highlander,  The  104,  234 

Himalaya.  The  45,  137,  138,  151 

Hine  v.  Trevor  4,  5,  16,  32 

Hobart  v.  Drogan  28,  64,  66,  57,  66,  71, 
248,  310 
Hogan  V.  Ross  344 

Holder  Borden,  The  56,  170 

Hollen,  Tlie  305 

Holliday  v.  Batson  340 

Holmes  v.  Joseph  C.  Griggs  39 

Homely,  The  88,  209 

Hope,  The  42,  137,  142,  151,  164,  208, 
213,  216,  239,  247,  260 
Hope  V.  Brig  Dido  66 

Hopewell,  The  173,  290 

Hoppet,  The,  v.  United  States  324 

Housman  v.  Schooner  Nortli  Caro- 
lina 113,  120,  174,  303 
Howard,  Tiie  137 
Howthandel.  The  100,  174,  178 
Hoyt  V.  Hammekin  347 
Huber  v.  Coal  Barges  5 
Hudgins  v.  Kemp  344 
Hudson,  The  64 
Hunter,  The  198 
Huntsville,  Roberts  v.  The  187 
Huntsvilie,  The  210,  216 
Hurry  v.  The  John  and  Alice  322 
Hussey,  Reed  v.  170,  285 
H.  W.,  The  250 
Hyderabad,  The  105 
Hyer,  Tiie  Schooner  Wave  v.  6 
Hypodame,  The                         211,  309 


I. 


Ida  L.  Howard,  The  81,  92,  181 

Imperatriz,  The  212 

Tnca,  The  105 

Independence,  The    38,  39,  47.  65,  124, 
125, 126,  127,  187,  246 
India,  The  40,  42,  83,  105 

Indiana,  The  214,  216 

Indian  Hunter,  The  134 


Industry,  The 

Infanta,  Tlie 

Ingles  V.  Coolidge 

In  re  Blanchard 
Caroline 
Dubuque 
Judson 


88 
319 
341 

32 
234 
249 
848 


Insurance  Company  i;.  Baring  196 

V.  Dunham  9,  14, 
18,  28,  29 
Intrepide,  The  220 

Invincible,  The  249 

lof'ine,  The  74 

lola.  The  72,  209 

Iron  Duke,  The  211 

Ironmaster,  Tlie  269 

Ironside,  Tiie  287 

Iroquois,  The  147 

Island  City,  The  79, 81, 84, 105, 140, 322 


J. 


Jack  Jewett,  The  45,  64 

Jackson  v.  The  Magnolia  4,  6,  41 

Jacob  Landstrom,  The  248 

Jamaica  Steam  Ferr}'  Boat  Colli- 
sion, The  209 
James  Adger,  The  210 
Anderson,  The  112 
A.  Wrigiit,  Tiie                       279 
Boyle  et  al.  v.  The  S.  S.  Teu- 

tonia  144 

Dixon.  Tlie  106 

Grey,  Tlie,  v.  The  John  Fra- 

zer  214,  223,  224,  229 

Guy,  The  193 

Hamilton  v.  Vicksburg,  Shreve- 

port.  &  Pacific  R.  R.  Co.         6 
Watt,  Tne  208,  211 

Jane,  The        71,  99,  100,  101, 104,  137, 
142,  151 
Jane,  The.  and  Matilda  234 

Jane  Anderson,  The  112 

Janet,  The  100 

Janet  Mitchell,  Tlie  44,  46,  60,  142 

Janet  Wilson,  The  239 

Janney  v.  Columbian  Ins.  Co.  29 

Jansen  v.  Tlie  Magdalena  2 

Jarvis  v.  Chandler  265 

Java,  The  223 

Jenkins  v.  Greenwald  252 

Jennings  v.  Carson  30,  276,  320 

V.  The  Perseverance  256 

Jenny  Lind,  The  5,  81 

Jerome  v.  McCarter  315,  343 

Jerusalem,  The  237,  321,  323 

Jeune  Louise,  The  312 

J.  F.  Spencer,  The  267,  321 

J.  J.  Paint,  The  41 

J.  L.  Bowen,  The  46 

Johann,  The,  v.  Frederick  22 

Johannes,  The  65,  287,  289 


INDEX  TO  CASES  CITED. 


XXlll 


John,  The  163,  200 

John  Adams,  The  214 

Bryant,  Tlie  178 

E.  Clayton,  The  88,  U2 

F.  ToUe,  The  225 
Gilpui.The  47,81,182,184,185,247 
H.Abeel,  The  210 
L.  llasbrouck.  The  217,  219 
I'erkins,  The  65,  56,  176,  laO,  181, 

184 

Shaw,  Coffin  v.  The     39,  127,  248 

T.  Moore,  The  190 

Wurts,  The  40.  42,  83,  91,  92,  185 

John  and  Thomas,  Tlie  173 

Johnson,  The  207,  218,  219 

Jolmson  V.  Dalton  4 

Joliffe,  Steamship  Co.  v.  199 

Jones  V.  Coal  Barges  8,  11,  14 

V,  Knowles  348 

V.  Or.  C.  R.  R.  Co.  349 

V.  Tlie  Massasoit  186 

Jones  Brotliers,  Tlie  251 

Jones,  Hartford  v.  182,  184,  186 

Jonge  Audries,  The  65,  66,  71,  112, 122, 

128 
Jonge  Bastiaan,  The  42,  84,  85,  89,  90, 
91,  104, 140,  166,  107 
Jonquille,  The  340 

Jordan  v.  Woods  el  als.  285 

Joseph  C.  Griggs.  Tlie  -38 

Joseph  Harvey,  The  65,  66,  287 

Josephine,  The  74,  141,  302 

Josephine  Spangler,  The  141,  203 

Joy  V.  Allen  109 

J.  T.  Abbott,  The  45 

Jubilee,  The  90,  92,  104,  189 

Juliana,  The  212,  240 

Julindcr,  The  247 

Juniata,  The  270,  810 

Justi  Pon  and  Others  v.  Brig  Ar- 
bustei  203 


K. 

Kalisto,  The  211 

Ivalorama,  The  190,  192,  193.  194.  196. 
199.  200.  322 
Kate  Tremaine.  The  3,  10,  321 

Kenmure  Castle,  The  144 

Kennedy  v.  Bank  of  Georgia  342 

Kentucky.  The  209 

Kepler,  The  287 

Key  City,  The  250 

Key  West,  The  84, 144 

Kiersage,  The  195 

Killam  v.  The  Eri  207 

Killarney,  The  247 

King  V.  Shepherd  34 

Kingalock.  The  71,  94,  112,  121 

King  Oscar,  The  65 

King,  The,  r.  Property  Derelict  45 

Kirkland,  Re  821 


Kirkland  v.  Union  Bank  of  Louisi- 
ana 840 
Kjiight  V.  The  Attila  23 
Kynoch  v.  The  S.  C.  Ives                 824 


L. 

La  Belle  Creole  137.  152 

Lady  Anne,  The  208,  25a 

Catherine  liarham.  The  287 

Egidia,  The  68,  71,  287 

Elora  Hastings,  The  124 

of  the  Lake,  The  210,  213 

Pike,  The    217,  297,  298,  300,  310 

Worsley,  The     40,  171,  172,  175, 

181,  184 

Lamar  et  al.  v.  Barque  Penelope         64 

Lane  v.  Townsend  829 

Larco  v.  The  Martha  Elizabeth        213 

L'Arina  v.  Exchange  821 

V.  Man  waring  321 

Laura,  The  181 

Laurel,  The  259,  287 

Lauretta,  The  249 

Lawrence  v.  Sidebotham  100,  101 

L.  B.  Goldsmith,  The  331 

Lea  V.  Alexander  54,  66 

Leander,  Flinu  v.  The     81,  91,  92,  176. 

260 
Leathers  r.  Blessing  31 

Lee  V.  Thompson  274 

V.  Watson  26 

Leland  v.  The  Medora  191,  331 

Lena,  The  220 

Leo,  The  208,  210 

Leon  V.  Galceran  27,  198,  199 

Leonidas,  The  2:i6 

Leopard,  The  209,  210 

I^roy  V.  Ins.  Co.  349 

L'Esperance         80,  81,  91,  92,  104,  181 
Le  Tigre  66,  71,  73 

Levering  v.  Bank  of  Columbia  192 

Levi  Dearborn,  The  321 

Lewis  V.  The  Elizabeth  and  Jane    173, 
17ti,  185,  186,  821 
Leycester  ».  Logan  265 

Liberty,  The  66 

Ligo,  The  211 

Lillie  Laurie,  The  197, 198,  282 

Lillie  Mills.  The  249 

Linda  v.  Brown  30 

Lion,  The  207 

Lipson  I'.  Harrison  247 

Little  Joe,  The  43,  67,  289 

Lively,  The  79 

Livingstone,  The  40,  41 

Lockwoods,  The  178 

Logan  I'.  The  JEolian  239,  822 

Ivondon,  The  287 

London  Men^lmnt.  The   71,  94,  248,  341 
London  Packet,  The  270,  347 


XXIV 


INDEX  TO  CASES  CITED. 


Longford,  The  165,  166,  167 

Lonsdale  v.  Brown  849 

Lord  Auckland,  The  287 

Lord  Nelson,  The  91,  141,  170 

Lothian,  The  259 

Lottawanna,  The  3,  24,  244,  280,  298, 
301,  304,  321,  331 
Lotty,  The  8 

Louisa,  The  46,  73,  100,  137,  151,  154, 
163,  174 
Louisa  Jane,  The  41,  90,  126,  127,  128, 

247 
Louisiana,  The,  v.  Fisher  213,  216 

Louisiana  Ins.  Co.  v.  Nicholson  253 
Lovett  Peacock,  Tlie  105 

Lowe  V.  The  Titus  113 

Lowry  v.  Tlie  Portland  209,  224 

L.  T.  Knight,  The  176 

Lubker  v.  Quimby  261,  290 

Lucas  V.  Brooks  346 

V.  The  Swan  223 

Lucille,  The  219, 221,  222, 280, 297,  304, 

308 
Lucy,  The  25 

Lulu,  The    191,  192,  193,  194,  195,  196, 

322 
Luna,  The,  v.  The  Belgenland  22 

Lustre,  The  74,  141 

Ijuther  V.  The  Merritt  Hunt  347 

Lydia,  The  24 


M. 

Mabey  and  Cooper,  The  223,  307 

Maby,  The  ii70 

Macomber  v.  Thompson  285 

Macy  1-.  De  Wolf  242 

Magdalen,  The     42,  45,  83,  84,  85,  104, 
171,  174,  178,  179,  287 
Maggie  Hammond,  Tlie       22,  200,  321 
Magnolia,  The  40,  173 

Maguire  v.  Card  27,  28,  821 

Malony  v.  City  of  Milwaukee  9 

Maltby  v.  Steam  Derrick  Boat  11 

Mangerton,  The  212 

Manhassett.  The  224 

Manro  i-.  Almeida  252,  318,  329 

Marcellus,  The  309 

Marcia  Tribou,  The  215 

Margaret,  The  61,  324 

Margaret,  The,  v.  The  Connestoga   284 
Margaret  and  Jane,  The  288 

Marengo,  The  323 

Maria,  The      78,  91,  184, 185,  215,  222. 

238 
Maria  Jane,  The  61,  165 

Maria  Martin,  The      '  225,  229 

Maria  Pike,  The  Schooner  182 

Marianna,  The  46 

Marianna  Flora,  The  308 

Mariel,  The  249,  276 


Marion,  The  194 

Markland,  The  282 

Marquette,  The  111,  125,  126 

Marquis  of  Huntley,  The     92,  164,  170 
Marrion    Blacksmith  &  Wrecking 

Co.  V.  Steamboat  H.  C.  Yearger    196 

Marshall  v.  Dazin  319,  332 

Marstin  v.  McRea  348 

Martha,  The    78,  99,  137,  172,  175,  235, 

240,  319 

Martha  Anne,  Tlie  6 

Martin  i-.  Acker  5 

Martin  Luther,  The       60,  104,  137,  149 

Mary,  The  38,  41,  46,  79,  82,  341 

Mary  Ann,  The    74,  104,  141,  154,  103, 

196,  259,  328 

Bell,  The  193,  194 

Coe,  The  134 

Ford,  The  91 

Jane,  The  149 

Pleasants,  The  73,  165 

T.  Wilder,  The  214 

Mason  v.  The  Blaireau      22,  56,  64,  66, 

89,  92,  139,  152,  176,  177 

Masonaire  v.  Keating  29 

Massasoit,  The  56,  238 

Matter  of  McLellan  237 

Mattingley  v.  357  Bales  of  Cotton     134 

Maude  Wilmot,  The  137,  161 

Mayo  V.  Clark  '  70,  197 

Mayurka,  Beane  v.  The  44,  46,  48 

Maury  &  Co.  v.  Culliford  2(i3 

M.  B.  Stetson,  The  89 

McAllister  v.  Tlie  Sam  Kirkman      192 

McAndrews  i\  Thatcher  169 

McCall,  Phillips  v.  56,  06 

McCarty  v.  Schooner  Senator  194 

V.  Steam   Propeller  City 

ot  New  Bedford         231 

McCormick  v.  Ives  10 

McCready  v.  Goldsmith  210,  211 

McDermott  v.  The  S.  Gowens  194 

McDonald,  The  284 

McDonald  v.  Hennel  329 

McDonough  v.  Dannery       64,  92,  141, 

251,  308 

McGinnis  v.  The  Pontiac  4,  88,  89 

McGrath  v.  Candalero  318 

McGrew  v.  Melnotte  216 

McGuire  I'.  Card  40,41 

Mclver  V.  Wattles  341 

McKinlay  et  al.  r.  Morrish  et  al.  252,  260 

McKnight  v.  Craig  342 

McLellan  v.  United  States  295,  298,  344 

Meany  v.  Head  200 

Mechanics'  Bank  v.  Seaton  348 

Medina,  The  121 

Medora,  The  100 

Meg  Merrilies,  The  71 

.Mellon  I'.  Smith  215 

Memphams  v.  Brissel  309 

Memphis  &  Ohio  R.  R.  v.  Hicks  7 

Mentor,  The  234 


INDEX  TO   CASES   CITED. 


XXV 


Mercer  County  v.  Hackett  85 

MtTcliaiit  Traders'  ISIiip  Loan  and 

Insurance  Association,  Briggs  v.  165 
Merrill  v.  Dawson  847 

Merrimac.  The  58,  207,  222,  248 

Mesa  V.  United  States  340 

Messenger,  The  312,  313 

Miller  t-.  Kelly  65,  247 

V.  United  States  23,  327 

V.  Young  347 

Milligan  v.  Pro[)eller  Bruce  2(57 

Mills  ('.  Bank  of  United  SUtes         25.3 
Mills,  R.  M.,  The  111 

Minerva,  The  80,  104 

Minnehaha,  The  6!),  176 

Miiiturn  v.  Maynard  1%,  243 

Miranda,  The  134,  213 

Missouri,  The  174 

Missouri's  Cargo,  The  176, 176, 177, 184. 

185 
Mitcliel  V.  United  States  842 

Mobile,  The  201 

Mohler,  The  217 

Mona,  The  235 

Monitor  and  Hill,  The  229 

Monongahela  Nar.  Co.  v.  The  Tug 

Boat  Connell  202 

Montalet  r.  Murray  842 

Monte.  The  195 

Monteith  v.  Kirkpatrick  6 

Montell  V.  United  States  237 

Montello,  The  6 

Monticello,  The,  v.  MoUison    211,  217, 

219,  303 

Montgomery  v.  Anderson  270,  28;i,  205, 

300,  803,  308,  344 

V.  The  Betsy  302 

V.  The  T.  P.  Leathers   40, 

81,  109 

V.  Tyson       169,  170,  235 

Moodie  v.  Brig  Harriet  60 

Moore  v.  Nelson  348 

Moran  v.  Baudin  235 

Mordecai  v.  Lindsay  295,  808,  344 

V.  Sell.  Mary  Eddy  and 

Owners  202 

Morehouse  v.  The  Jefferson  92 

Morcwood  v.  t^nquist  27 

Morgan  v.  United  States  127 

Morning  Light,  The    207,  216,  223.  22<.) 
Morning  Star,  The  64,  151 

Moses  Taylor,  The  27,  32,  .^3 

Moslem,  'I'he  235 

Mountaineer,  The  86,  140,  142 

Moxey,  The  206 

Mulgrave,  The  100, 124,  126,  128,  134. 

289 
Mulhouse.  The     88,  141.  174.  180,  181 
Murphy  and  Others  v.  Ship  Suliote  90 
Murray  v.  The  Charming  Betsy   89,  52 
r.  The  F.  B.  Ximick  Kt 

Myrick,  Waterbury  v.  64,  139 


N. 

Nabob,  The  215 

Nail  V.  The  Illinois  277 

Narragansett,  The     87,  38,  41,  88,  217, 

219,  292,  322 

Nassau,  The  321 

Nathaniel  Hooper,  The  Ship  63, 64, 102, 

139,  149,  820 

Native,  The  301 

Nautilus,  The  287 

Navarro,  The  825 

Neffr.  Tennoyer  292 

Nelson,  The  66 

Nelson  i'.  Leland  5,  6,  14,  211 

V.  United  States     298,  349,  361 

V.  Woodruff  347 

Neptune,  The     64,  66,  56,  86, 178, 186, 

212,  219 

Nestor,  The  321 

Nevcrsink,  The  191,  196,  822 

New  Brig,  A  321 

New  Ed,  The,  v.  The  Gustow  200 

Newell  V.  Norton  309,  .322,  825 

New  England,  The  296,  305 

New  Harbor  Protection  Co.  v.  The 

Suliote  65 

New  Harbor  Protection  Co.  v.  The 

Tornado  95,  108,  150,  155,  263 

New  Haven  S.  Co.  v.  Vanderbilt      214 
New  Jersey.  The  209 

New  Jersey  Steamboat  Co.  v.  The 

Merchants'  Bank         27,  34,  192,  321 
Newman  v.  Walters  57,  65,  66 

New  Philadelphia,  The  230 

Newton  v.  Stefflns       208,  217,  219,  224 
New  World,  The,  i;.  King  6 

New  York,  The  211 

New  York,  &c.  v.  Rumball       209.  217, 
219,  220.  221,  222 
New  York  &  V.  S.  S.  Co.  i-.  Calder- 

wood  208, 210 

New  York  Trans.  Co.  v.  Philadel- 
phia S.  N.  Co.  218,  219 
Niagara,  The  218 
Niagara  v.  Cordes,  The  227 
Nicholaas  Witzen,  The  VS8 
Nicholai  Heinrich,  The  100.  182,  186 
Nichols,  The  209,  218,  221 
Nicholson  i\  Chapman  15.  182,  247 
Nicolina,  Tl  e  60, 137, 138, 142, 151, 287 
Nimrod,  The  173 
Nonesuch,  The  25 
Noonan  v.  Lee  252 
Norden,  The  37,  60 
Norfolk  and  Union,  The  1 
Norma,  The  104,  106,  107 
Norris  v.  The  Island  City  64,  85 
North  American,  The  259,  287 
North  Carolina,  The  173 
North  Star.  The  287 
Northern  Indiana,  The  210,  216 
Nortliumberland,  The                         97 


XXVI 


INDEX  TO  CASES  CITED. 


Norton  v.  Hood  and  Others  296 

V.  Kicli  304,  305,  331 

Norwicli  Co.  v.  Wright  29,  227 

Nott  V.  The  Steamboat  Sabine  and 

Cargo  254,  323 

Nuestra  Senora  de  Regla  304,  331 

Nuova  Loanese,  The  122,  123 

N>-mphe,  The  287 


o. 

Gates  V.  The  Eio  Grande  298,  305 

Ocean,  The  43,  323 

Ocean  Belle,  The  86 

Queen,  The  333 

Spray,  The  237,  239 

Star,  Tlie  Ship  132 

Oceanus,  Tlie  217 

Ogdensburgh,  The  209,  218 

O'Hara  v.  Ship  Mary  322 

Olive  Branch,  The  56 

Oliver  v.  Alexander  235 

Olivia  A.  Carrington,  The  281 

Olney  v.  The  Falcon  278 

Omer,  The  64 

One  Anchor  and  Chain  187 
One   Hundred    and    Seventy-four 

Shawls 
O'Neil  V.  Sears 
Oratava,  The 
Orbona,  Tlie 
Oregon  v.  Rocca  25,  209,  216, 


22 

207,  215,  210,  229 

212 

100,  182 

218,  219, 

308 

Orinoco,  The  221 

O'Rourke   v.   Two    Hundred  and 

Twenty-one  Tons  of  Coal  267 

Osborne  v.  Rogers  184 

Oscar,  The  104 

Osprey,  The  211 

Ottawa,  The     54,  55,  63,  139,  213,  222, 

347 
Otto  Hermann,  The  67,  87 

Overton  v.  Cheek  340 

O  wings  V.  Tiernan  340 


Pacific,  The 

180 

209 

Packard  v.  The  Louisa    184, 

194, 

2:37, 

249 

Packet,  The 

193 

Paint,  The  John  G 

125 

Papayanni  &   Co., 

Owners  of  the 

Thessalia,  v.  W.  H.  Tindall  &  Co., 

Owners  of  the  Yorkshire 

261 

Panama,  The 

331 

Panthea,  The 

196 

Paragon,  The 

239 

Paris,  The 

138 

289 

Parkersburg,  The 

213 

Patapsco,  The 

193,  278 

821 

322 

Patapsco  Ins.  Co.  v.  Southgate  347,  348 
Paichin,  The  A.  D.  124,  125,  126 

Fatten  v.  The  Randolph  323 

Paul,  The  107 

Paul  V.  Lowry  348 

Pawashick,  The  271 

Peck  V.  Sanderson  219,  229 

Peerless,  The  206,  259 

Peisch  V.  Ware  177,  290 

Penhallow  v.  Doane  298,  342 

Fenn  v.  Wheeling  Bridge  Co.  8 

Pennsylvania,  The  215,  217 

Pennsylvania  R.  R.  Co.  v.  Gilhooley  292 
Pensacola,  Tlie  163 

Pensamiento  Feliz,  The  141 

People's  Ferry  Co.  v.  Beers       199,  243 
Pericles,  The  39 

Perkins  v.  Augusta  Ins.  and  Bank- 
ing Co.  49,  105 
Perkins  John,  The  44,  55,  50 
Perla,  The  149,  179 
Perseverance,  The  223 
Persia,  The  88.  104 
Perth,  The  94,211 
Peshtigo,  The  190 
Peter  Ormerod  r.  The  New  York, 

West  Shore,  &  Buffalo  R.  Co.        227 
Peters  v.  Prevost  349 

V.  Warren  Ins.  Co.  169 

Peterson  v.  The  Chandos  '  103 

Petrel,  The  215 

Pettibone  i".  Derringer  347 

Pettingill  v.  Dinsmore  325 

Petty  V.  Merrill  276,  279 

Peyroux  v.  Howard  4,  23,  121,  243 

Peyton  i;.  Veitch  348 

Peytona,  The  801 

Phantom,  The  38,  125, 127,  312 

Phelps  V.  The  Camilla  193 

Philadelphia,  &c.  R.  R.  v.  Stimpson  253 
Philadelphia,  &c.  Co.  v.  Philadel- 
phia S.  T.  Co.  225 
Philadelphia,  W.,  &  B.  R.  R.  Co.  v. 

Towboat  Co.  6,  309 

Philips  V.  McCall  56,  60 

r.  The  Thomas  Scattergood  192, 
205,  321 
Phoenix,  The,  r.  The  Viking  113 

Pickett  V.  Legerwood  340 

Pigs  of  Copper,  Bearse  v.  37,  47,  88,  90, 
124,  186,  271 
Pilot,  The  206,  221 

Ping  On,  The,  v.  Blethen  and  Oth- 
ers 258 
Pioneer,  The  326 
Pitman  r.  Hooper  821 
Plymouth,  The  9 
P.  M.  S.  Co.  V.  Ten  Bales  of  Cotton  135 
Poland  V.  Brig  Spartan  820 
Pontiac,  The  37,  40,  42,  47 
Pontiac,  Maginnis  v.  The  88 
Poole  ?;.  The  Washington  215 
Pope  V.  The  R.  B.  Forbes          208,  215 


INDEX  TO  CASES  CITED. 


XXVll 


Porter  i-.  The  Seawitch  289 

Post  V.  Jones  82,  89,  92,  126,  813 

Potomac,  The  809 

Poultney  v.  City  of  Lafayette  262,  263, 

342 
P.  M.  S.  S.  Co.  V.  Bales  of  Gunny 

Bags  251 

P.  P.  M.  &  W.  Co.  V.  The  Steam- 
boat H.  C.  Yeager  70 
Pratt  V.  Reed                       191,  194,  197 
V.  Thomas                                   89 
Prcndeville  v.  The  Steam  Naviga- 
tion Co.                                          811 
Presto,  The                                         215 
Price  V.  Morris                                    347 
Pride  of  Canada,  The  137, 138, 140, 146. 

1C8 
Prince  Albert,  The  72 

Prince  Leopold,  Tlio  195 

Prince  of  Wales,  Tiie  41,  45 

Princess  Alice,  Tlie  39,  70,  89,  124 

Princess  Helena,  The  151,  1G3,  183 

Prinz  Frederik  94,  172,  179 

Prior,  Tyson  v.  79,  81,  105 

Pritchard  v.  Tiie  Lady  Horatia         321 
Progress,  The  53,  106,  170 

Propeller  Genessee  Ciiief  v.  Fitzhugh  4 
Property  Derelict,  The  King  v.  45 

Prospect,  Ti^e  198 

Protector,  The      94,  137,  161,  846,  3.33  I 
Prouty  V.  Draper  347 

Providence  &  New  York  S.  S.  Co.    337 
Purissima  Concepcion,  Tlie   43,  73,  90, 

176 

Q. 

Quantity  of  Iron,  A  82  . 

Queen  Dowaper,  The  218  | 

Queen  Mab,  The  82,  92,  184,  186  I 

Quickstep,  The  808,  309 


R. 


11,  20, 


46, 

192,  246, 

39,  41, 


Raft  of  Cypress  Logs,  A 

Raft  of  Spars 

Raikes,  The  38,  94,  100, 

Railroad  Co.  v.  Harris 

Rainer  v.  Haines 

Rajastlian,  Tiie 

Ramsay  v.  The  Allegro 

Ranger,  Tiie 

Ransom  v.  Mayo 

Ranson  v.  Labranchc 

Raymond  v.  The  Ella  Stewart 

Rebecca,  The 

Rebecca  Clyde,  The 

Red  Rover,' Tiie  61, 

Reed  v.  Hussey  170, 

Regina  del  Mare,  The 

Reindeer,  The 

He  Kirkland 


200 
46 

314 

345 

348 

137 

321 

289. 
16 
7' 

192; 

215 

278 

2noj 

285 
247  1 
808 
8211 


Reliance,  The  90,  104 

Reppert  v.  Robinson  12,  243,  299 

Rtpulse,  Tlie  113,  123 

Resultatet,  The  121,  122,  123 

Revenue  Cutter  No.  1,  The  5 

Reward,  The  38,  39,  70,  71,  72,  124 
Riiode  Island,  The  217 

Ricli  t'.  Lambert  84,  248 

Richardson  v.  Golden  849 

Riclimond,  Tlie  67,  309 

Rio  Grande,  The  2.  33,  278,  298 

Rising  Sun,  The  64,  89,  162,  171,  176, 
176,  177 
R.  M.  Mills,  The  111 

Roach  V.  Chapman  199,  243 

Roarer.  The  278,  283,  303 

Robert  v.  Dallas  322 

V.  Skolfield  6 

Robert  Bruce,  The  814 

Robert  Hall,  The  52 

Robert  and  Ann,  The  210 

Roberts  v.  The  Hunts ville  187 

Robinson  v.  George's  Ins.  Co.  261 

Rob  Roy,  The  91 

Robson  V.  The  Huntress  74 

Rock  Island  Bridge,  The  15,  190,  230 
Rodd  V.  Hearlt  307,  316 

Roe,  The  46,  47,  142,  145,  209 

Roff  y.  Wass  •  71,  123,  140 

Rogers  v.  Law  340 

V.  The  St  Charles  210.  214,  229 
Rosalie,  The  45,  72,  73,  178 

Rosalind,  The  42 

Rose,  The  208,  210,  211,  218,  277 

Roshaugh,  The  66,  68 

Rothsay  Castle,  The  97 

Royal  Consort,  The  220 

Royal  William,  The  182 

Rowe  V.  Brig 79.  81,  89,  91, 92,  93, 

249 
Roxana,  The  134 

Ru<rgles  r.  Bucknor  347 

Rusk  r.  The  Charles  Morgan  32 

Rutland,  The  105 


S. 
Sabina,  The  107 

Sabine,  The  264 

S.  A.  Boico,  The  174 

Sailor  Prince,  The  '281.  322 

Sailor's  Bride,  The  22,  40,  41 

Saint  Nicholas,  The  137,  138, 151 

Salacia,  The     67,  66,  99,  104,  112,  125. 
127,  142,  151,  186 
Sally,  The  30 

Sally  V.  United  States  307 

Salvor  Wrecking  Co.  v.  Sectional 

Dock  Co.  12,  30,  290 

Samuel,  The     42,  80.  82,  107.  12:3.  270. 

333,  341,  347 

Samuel  W.  Crawford,  The  209 

Sampson,  The  44,  209,  225 


XXVlll 


INDEX   TO   CASES   CITED. 


Sandwich,  The  243 

San  A'icola,  The  172 

Sansome,  Tlie  104,  122,  142 

Santa  Ciaus,  The  208,  212,  216,  217, 221 

Santa  Maria,  The  342 

Santipore,  Tlie  40,  42,  84,  85,  140 

Sappliire,  The  214,  229,  257 

Sappho,  Tlie  44,  74,  231 

Saragossa,  Tlie  39,  47,  (53,  64,  72 

Sarah,  The  88,  89 

Sarah  Bell,  The  79,  81,  108 

Sarali  Jane,  The         121,  142,  164,  248 

Saratoga,  The  43,  69,  99,  127 

Saratoga  v.  438  Bales  278,  303 

Saratoga  R.  H.  Co.  7 

Sardis,  The  Steamer  179 

Sarpedon,  The  49 

Sawyer  v.  Oakman  319 

Saxonia,  The  206,211 

S.  B.  Wheeler,  The  229,  309 

Schooner  Adeline,  The  325,  341 

Boston  &  Cargo,  The  49,  101, 

171,258 

Freeman  v.  Buckingham  195, 

267 

Maria  Pike  132 

Marion  321 

Maud  Webster,  The  21 

Rnby  349 

Senator,  The  205 

Schuchardt  v.  Babbidge  331 

Schultz  V  The  Nancy  125 

Schwalbe.  The  259 

Scindia,  The  101,  143,  310,  314 

Scioto,  The  214,  215 

Scotia,  The  206,  212,  213,  216,  219 

Scotland,  The  216 

Scott  et  at.  V.  The  Ira  Chaffee  205 

Sea  Flower,  The  193 

Sea  Gull,  The  23 

Seaman  v.  The  Erie  Railway  Co.      45, 

184,  185 

Secret,  The,  r.  The  Juniata  104 

Seldon  v.  Hendrickson  322 

Selina,  The  111,  187,  196 

Selt,  The  321 

Senator,  The  48,  179 

Sergeant  v.  Biddle  349,  350 

Seven  Coal  Barges  15,  16 

S.  F.  Gale,  The  208,  213 

S.  G.  Owens,  The  205 

Shankwiker  v.  Reading  349 

Shannon,  The  94,  208 

Shepard  v.  Taylor  21,  321,  330 

Sherwood  v.  Mcintosh  237 

Ship  Arctic,  The  43 

Brewster,  The  133 

Canada,  The  41 

Charles,  The  153 

Edith  321 

Nathan  Hanan  134 

Ocean  Star  132 

Robert  Fulton  820 


Ship  Virgin  321 

Shirley  v.  The  Richmond  215 

Shorey  v.  Rennei  329 

Shortcut,  The  202 

Shuttle  V.  Thompson  347,  348 

Silliman  v.  Hudson  RiverBridge  Co.  226 
V.    Troy    &    West   Troy 

Bridge  Co.  226 

Sills  V.  Brown  206 

Silver  Bullion,  The  48,  154 

Silver  Spray's  Boilers,  The  54,  111,  124, 
125,  126 
Simms  v.  Jackson  237 

Simpson  v.  Caulkins  248 

V.  Hand  212 

V.  110  Sticks  of  Hewn  Tim- 
ber 292 
Siren,  The  170,  190 
Sir  Ralph  Abercrombie,  The  60,  101, 
137,  138 
Sir  Robert  Peel,  The  267 
Skillern  v.  Meigs  342 
Skolfield  V.  Potter  242,  321 
S.  L.  Davis,  The  170 
S.  L.  James  v.  St.  Bt.  Golden  Rule  267 
Small  V.  The  Goods  saved  from  the 

Messenger  153 

Smith  V.  Clark  340 

V.  Condry  206,  224,  228,  229,  322 

V.  Schr.  J.  C.  King~  231 

V.  The  Roval  George  244 

V.  The  Ste'wart  90 

Smith,  The  British  Consul  v.  92 

Smyth  V.  Strader  846 

Snow  V.  Edwards  280 

V.  Tons  of  Scrap  Iron  23 

Societe,  The  308 

Sonderburg  v.  The  Tow  Boat  Co.     86, 

87,  96,  99,  136,  145,  161,  165 

Sophie,  The  80 

Sovereign,  The  260,  290 

Sparrow  v.  Strong  340 

Spaulding,  The  169,  185 

Spearing,  The  J.  H.  32 

Speed,  The  269 

Spencer  v.  The  Charles  Avery     38,  39, 

40,93 
Spirit  of  the  Age  60,  99,  138,  150.  151 
Sprague  v.  Barrels  of  Flour  90,  92 

Spurr  V.  Pearson  177 

Squire  v.  Tons  of  Iron  55,  125 

S.  R.  Dunlap,  The  205 

St.  Charles,  The  211,  214 

St.  Jago  de  Cuba  193,  197,  244,  321 
St.  John  V.  Paine  208,  209,  21 1,  216,  218, 
219,  220,  221 
St.  Lawrence,  The  24,  199,  243,  252, 
253,  287,  341 
St.  Louis,  The,  v.  The  A.  Rossiter  210 
St.  Petersburg,  The  80 

St.  Petre,  Wilkie  v.  The  176,  185 

Stafford  v.  Union  Bank  of  Louisi- 
ana 342,  848,  344 


INDEX  TO  CASES  CITED. 


XXIX 


Star,  The  50 

Star,  Dickinson  rt  a/.  62 

■Steamboat  Kdwanl  Howard  146 

New  Kngiantl  830 

Orleans,  The,  v.  Phoebus  29, 
321 
Potomac  V.  Cannon  iBB 

T.  P.  Leatliers,  The    61,  64, 
108 
Washington  Irving,  The  191 
Steamer  Sanlis.  The  179 

Steamer  St.  Lawrence  821 

Steamer  Virginia  v.  West  840 

Steam  Navigation  Co.,  Prenderille  r.  31 1 
Steamsliip  Co.  r.  Joliffe  lO'J 

V.  Portwardens  109 

Steamship  ITuntsville,  The  79,  90 

Steamsliip  Mississippi,  Tiie  9 

Steam  Tng  William  Young,  The     224 
Stein  »».  Bowman  347 

Stella,  The  107 

Stephen  Allen,  The  192 

Stephen  Morgan,  The  308 

Stephens  v.  Ship  Argus  76,  170 

Sterling  r.  The  Jenny  Cushman       214 
Stetson,  M.  B.,  The  37.  89 

Stewart,  The  162 

Stewart  f.  Potomac  Ferry  Co.  1 

Story  I'.  Livingston  342 

Stout  V.  Foster  214,  216,  229 

Stradcr  v.  Graham  341 

Strathnaver.  The  181,  297 

Stratton  v.  Jarvis  301 

Stroder  r.  The  Collier  192 

Stully  V.  Baker  147 

Sturgis  V.  Bover  224,  225,  227 

V.  Ilarrold  840 

SuflTolk  Ins.  Co.,  Williams  v.  The  50, 169 
Suliote,  The  96,  137,  101 

Sultana,  The  234 

Sumner's  Apparel,  The  170,  177,  181 
Sundry  Mariners  v.  The  Washing- 
ton 288 
Sunnyside,  The  211,  216,  221 
Surplus  of  the  Ship  Trimountain  239 
Susan,  The  66,  67,  126,  127,  187,  238 
Susannah,  The  287 
Swallow,  The  240 
Swan,  The  61 
S.  W.  Downs,  The  42 
Swedish  Bark  Adolph  297 
Swift  i;.  Brownell  218 
Sylph,  The  211,  269 
Sylvester  Hall,  The  218 
Syracuse,  The  210,  219,  226 
Syrian,  The                                  98,  106 

T. 

Talbot  V.  Jenny  87 

V.  Seeman    38,  39,  41.  60,  52,  68, 

80.93 

Talbot  V.  The  Wakeman  325 


Tappan  v.  Beardsley  847 

Taylor  i;.  Carryl  226 

V.  Harwood  6,  212,  272,  277 

r.  The  Friendship  88 

r.  The  Ship  Cato  66, 81, 89, 139, 

171 

Teasdale  v.  The  Rambler  826 

Tees,  The  72,  138 

Tees,  The,  and  The  Pentucket  46 

Telegraph  Co.  v.  Eyser  845 

Texas  v.  Child  346 

Thackarey  v.  The  Farmer      10,  11,  20 

Tliames,  The  9,  31,  208 

Tliaro  V.  Smith  325 

Theodore,  The  53.  123 

Thetis,  The  73, 80,92, 102, 104, 106, 141, 

179,  313 
Thomas  v.  Brockenborough      346,  863 
V.  Grey  6 

V.  Lane  296,  322,  325 

Thomas  A.  Scott,  The  94 

BIyth,  The  99 

Fieldon,  The  98,  106 

Jefferson,  The  239 

Powell.  The.  v.  The  Cuba  223 
and  Henry,  The,  r.  United 

States  348 

et  al.  V.  Osborne  190, 191,  192, 
194, 196,  197 
Thompson  v.  Lyle  2 

Thorne  r.  White  240 

Thorpe  i;.  Orr  849 

t^.  Simmons  847,  348 

Thurber  v.  The  Fannie  82 

Tigre.  U  141 

Tillie,  The  218 

Tillmore  v.  More  82 

Tod  V.  The  Sultana  196, 197 

Todd  r.  Bark  Tulchen  256 

Toledo,  The  267 

Tolomeo,  The  84 

Tome  V.  Four  Cribs  of  Lamber  11, 13, 

16,46 
Tons  of  Coal  124,  125 

Tooker  v.  Thompson  847 

Topaze,  The  207 

Tories,  The,  r.  The  Winged  Races  105 
Tornado,  The  114 

Towan,  The  178, 184,  186 

Town  V.  The  Western  Metropolis     326 
Towne  v.  Bark  Betsina  3 

T.  P.  Leathers,  The  61,  64,  168 

Trainer  et  al.  r.  The  Superior  241 

Transportation  Line  v.  Hope  267 

Traveller,  The  38,  71,  90,  126 

Treadwell  i'.  Joseph  825 

Trelawnev.  The  46,  247 

Trenton,  The  201 

Trident,  The  287 

Tritonia.  The  182 

Triumpho,  The  56 

Trov  f.  Evans  26 

Troy  I.  &  N.  Factory  r.  Comiag      298 


XXX 


INDEX  TO  CASES  CITED. 


True  Blue,  Tbe    90,  102,  103,  111,  121, 
122,  124,  125,  128,  137,  148,  311,  314 
Truro,  The  130 

Tucker  et  al.  v.  Bark  Mary  C.  Por- 
ter and  Cargo,  Tlie  189,  272 
Tug  Champion,  The  321 
Tug  Eagle,  The  16 
Twenty-three  Bales  of  Cotton  20 
Twibell  V.  The  Keystone  209 
Two  Catherines,  The  38,  44,  56 
Two  Friends,  The     55,  59,  61,  62,  137, 

153 
Tyrian,  The  222 

Tyson  v.  Prior  79,  81,  105 

u. 

Udall  V.  The  Ohio  278 

Undaunted,  The     89,  40,  41,  42,  45,  07 
Underwriter,  The  41,  84,  140,  285 

Union,  The  213,  247,  303 

Union  Express,  The  48 

F.  Co.  V.  The  Delphos  64 

S.  S.  Co.  V.  Kew  York,  &c. 

Co.  207,218,223.229 

Tow  Boat  Co.  v.  Tiie  Delphos  88, 
129 
United  States  u.  Amistad,  The  141 

V.  Barker  342 

V.  Barrels  of  Alcohol   324, 
326,  327,  328,  329 
V.  Bevans  33 

V.  Boisdore  340 

V.  Boyd  342 

V.  Brig  Malek  201 

V.  Case  of  Hair  Pencils  348 
V.  Circuit  Judges  807 

V.  Coombs  76,  248 

V.  Farragut  33 

V.  Fremont  840,  342 

V.  Glamorgan,  The       305 
V.  Havnes  302 

t'.  HoVe  342 

r.  t^a  Vengeance     80,  842 
t;.  Little  Charles  318 

V.  Malek  Adhel,  The  285 
V.  McLemore  342 

V.  Murphy  346 

V.  One  Hundred  and 

Twelve  Casks  309 
V.  Package  of  Pins  827 
V.  Pirates  33 

17.  Price  849 

V.  Queen,  The  324 

V.  Rectified  Spirits       324 
V.  Reid  346 

V.  Ringgold  342 

V.  Schooner  Charles     317 
V.  Specie  30) 

f.  Tliompson  284 

V.  Towns  298 

V.  Two  Hundred  and 
Fifty  Barrels  24 


United  States  v.  Union,  The  111 

V.  Union  Pacific  R.  R. 

Co.  248 

V.  "Wilder  170 

V.  Wiltberger  84 

V.  Wonson  295,  844 

Upnor,  The  38,  105,  289 

Urania,  Tiie  46 

Ure  V.  Coffman  214 

Utility,  The  249 

Utpadel  V.  Fears  170 


V. 


Valentine  v.  Lake 

228 

Vanderbilt,  The                  207, 

208,  256 

Vanderwater  v.  Mills         190, 

195,  197 

Vanffuard,  The 

98,  149 

Van  Ness  v.  Heinecke 

348 

Van  Santwood  v.  The  John  B 

Cole  10 

Vasse  V.  Smith 

348 

Vaughan,  The 

256,  .^>08 

Vaughan,  The,  v.  Telegraph 

336 

Veitch  V.  Farmers'  Bank 

840 

Venus,  The 

341 

Vernard  r.  Hudson 

285 

Vernon.  The 

207 

Vesta,  The             73,  104,  166, 

170,  312 

Vickshurg,  The 

301 

Victor,  The 

215 

Vidal  Sala,  The 

9 

Vine,  The                 55,  59,  60, 

151,  289 

Virdin  v.  The  Caroline 

95 

Virgil,  The                   208,  209, 

211,  259 

Virgin,  The 

256 

Virginia,  The 

47 

Virgo,  The 

808 

Vivid,  The 

210 

Voce  V.  Lawrence 

847 

Volunteer,  The 

11 

Vrede,  The 

57,58 

Vrow  Margaretha,  The 

43,  261 

w. 

Wainwright  v.  Crawford  196 

Waitestal  v.  Brig  Antelope  &  Cargo  52 


Waldo,  The 

191 

Wallis  V.  Thornton 

830 

Walsh  i;.  Rogers 

347 

Walshe,  W.  J.,  The 

10 

Walters,  Newman  v. 

57,  65,  66 

Walton  V.  United  States 

841 

Wanata,  The              214,  279,  286,  298 

Wan  Onskan,  The 

52 

Ward  V.  Armstrong 

212 

r.  Peck 

29 

V.  The  Donsman 

207 

V.  The  Ogdensburgh 

210,  322 

V.  Thompson 

23 

INDEX  TO  CASES  CITED. 


XXXI 


Ward  et  al  v.  Clmmherlain  et  al.  2,  257 
Warder  v.  La  Belle  Creole  88, 168, 171. 

249 
Waring  v.  Clarke     5,  31,  208,  210  212, 
217,218,224,  229,322 
Warrior,  The  66 

Wnslilngton,  Tiie  28,  824 

Wasliinpton  and  Gregory,  The         230 
Waterbury  v.  Myrick  64,  189 

Waterloo,  Tlie     69,  61,  64,  74,  91,  151, 
152,  170,  189 
Water  Witch,  The  309 

Watt,  The  59,  73 

Wave,  The  58,  66,  71,  141,  322 

Wave,  The.  v.  Hyer  6,  56,  66 

Waveriy,  The  120 

Wayman  «.  Southard  262,  258 

Webb  r.  Pierce  242 

Weeks  v.  The  Catherina  Maria  56,  88, 

238 

Wenona,  The  209,  217,  222 

West  V.  liraaiiear  840,  342 

V.  Steamer  Uncle  Sam    258,  272, 

325 
Westerdell  v.  Dale  200 

Western  Ins.    Co.  v.  The    Good 

Friends  216 

Western  Metropolis,  The  207, 210,  840, 

841 
Westminster,  The  38,  42,  107,  120,  174 
Wexford,  Tiie  124 

W.  F.  Garrison,  The  140 

W.  F.  SafEord,  Tiie  239 

W.  H.  Clark,  The  207 

Wheaton  v.  Love  848 

W.  H.  Ellis  et  o/rrTThe  Tornado     108 
Wheeler  v.  The  Eastern  State  207 

Wheeling  Bridge  Case.  The  7,  30 


Whitaker,  The 
White  V.  Cannon 
White  Star,  The 
Whitlock  V.  Hales 
Wliitney  v.  Huntt 
Whitridge  v.  Dill 
Wigtonshire,  The 
Wilcox  V.  600  Tons  of  Coal 
Wilhelmine,  The 


40,  125,  126,  127 

3:36 

67,  69,  127,  187 

244 

847 

216,  217,  220,  221 

100 

205 

38 


Wiikie  V.  The  St.  Petre  176, 186 

Wilkinson  i-.  Yale  347 

Wiilard  v.  Sauisbury  214 
William,  The     37,  40,  67,  124,  140,  186 

William  Beck  ford,  The  88 

Brandt,  The  70 

Hamilton,  The  90, 105 


William  Hull.  The  247 

Jarvis,  The  269 

Lushingion,  The  112, 122, 120, 

128 

and  Emmeline.  The  199 

and  John,  The  121 

Williams,  The    37,  40,  07,  124,  140, 186 

Williams  «;.  A  Box  ot  Bullion  102 

V.  Bruce  200 

V.  Clafflin  816 

V.  Gutch  206 

V.  The  Jenny  Lind  126 

V.  The  Suffolk  Ins.  Co.  50,  169 

V.  The  Cargo  of  the  Adolph  79 

Williamson  v.  Barrett  227,  228 

V.  The  Alphonso       47,  145 

Willings  V.  Consequa  349 

Wilson  V.  Bell  321 

17.  The  Black  Bird  Creek 

Marsh  Co.  226 

Wilsons.  The  73 

Winchester  v.  Jackson  341 

VVinslow  V.  Wilcox  802 

Winthrop  v.  Union  Ins.  Co.  349 

Wolf  V.  The  Selt  321 

Wood  V  The  United  States  324 

Woodward  r.  Hall  348 

Worths  V.  Jimction  Railroad  Co.  7 

Wormian  v.  Griffith  .       16 

Wright  V.  Bales  846 

W.  8.  Lombard  v.  S.  S.  Delambre   1:^7 
Wurts,  John,  The  b3 

W.  W.  Averill  et  al.  v.  E.  A.  Yorke 
et  al.  146,  164 

T. 


Yankee,  The,  v.  Gallagher 

271 

Yeaton  v.  Lennox 

340 

V.  United  States 

297 

York  Co.  V.  Central  Railroad 

350 

Young  America,  The 

216 

Young  Mechanic,  The        196, 

202 

,286 

Yuba,  The 

296 

z. 

Zane  v.  The  President  193,  243,  321 

Zenobia.  The  824 

Zephyr,  The  61,  126,  289 

Zephyrus,  The  89 

Zollinger  v.  The  Emma  4 

ZoUverein,  The  206 


NOTE. 


New  Orleans,  Feb.  23,  1883.  The  following  decision  just  rendered, 
and  which,  therefore,  could  not  appear  in  the  body  of  my  book,  deals 
with  questions  which  seem  to  me  to  be  of  sufficient  interest  to  warrant 
the  insertion  of  it  in  this  place. 

M.  M.  Cohen. 


UNITED  STATES  CIRCUIT  COURT,  EASTERN  DISTRICT 
OF  LOUISIANA. 

TuRNBUix,  Martin,  &  Co.         \ 

V.  >  Admiralty  Appeal. 

The  Citizens'  Bank  of  Louisiana.) 

Libel  in  personam  for  balance  of  fi-eight  and  for  charges. 

Cross-libel  for  short  delivery. 

Bill  of  Lading  on  the  "  Fifeshire,"  from  Glasgow  to  New 
Orleans,  for  one  hundred  and  seventeen  tons  pig-iron,  in  the 
usual  form,  with  the  following  added:  "The  said  master 
hereby  acknowledging  having  received  the  full  weight  of  iron 
therein  specified,  the  same  having  been  weighed  alongside  at 
shipment,  and  holding  himself  and  the  said  vessel  bound  to 
deliver  the  same  weight  of  iron,  provided  it  be  weighed 
alongside  at  discharging. 

"  No  iron  to  be  retained  by  the  vessel.  The  pig-iron  to  be 
taken  from  alongside  and  discharged  at  the  rate  of  two  hun- 
dred and  fifty  tons  per  running  day  (Sundays  excepted), 
or  demurrage  to  be  paid  at  the  rate  of  twenty- five  pounds 
sterling  per  day." 


XXXlV  NOTE. 

At  this  port  (New  Orleans)  the  iron  could  not  be  unloaded 
and  piled  on  the  wharf,  on  account  of  wharf  regulations  pro- 
hibiting it,  so  that  the  ship  was  obliged  to  have  it  trucked 
across  the  wharf  to  terra  firma,  where  it  was  weighed  by  the 
customs  officers  and  found  to  be  some  thirteen  tons  short.  The 
cost  of  the  trucking  was  $11.70.  During  the  unloading  and 
up  to  the  weighing  both  the  government  and  the  consignees 
had  watchmen  employed  to  watch  the  iron. 

The  testimony  of  the  chief  officer  of  the  "  Fifeshire  "  is  to 
the  effect  that  he  superintended  the  loading  and  unloading  of 
tlie  cargo;  that  all  the  117  lot  taken  aboard  was  put  out; 
that  the  vessel  had  two  other  large  lots  of  iron  aboard,  in 
different  holds,  and  that  the  117  lot  was  separated  from  the 
other  iron  with  wood  and  mats ;  that  he  was  very  particu- 
lar about  keeping  the  lots  separate,  because  it  was  a  small 
lot. 

The  first  question  to  be  decided  is  as  to  the  liability  of  the 
consignees  for  the  charge  of  trucking  the  iron  across  the 
wooden  wharf. 

The  contract  specifies  that  the  iron  was  to  be  taken  from 
alongside. 

Unless  this  has  a  meaning  outside  of  the  plain  signification 
of  the  words  used,  the  expense  of  moving  the  iron  over  the 
wharf  to  land  would  fall  on  the  consignees. 

They  seek  to  avoid  this  liability  by  showing  that  tliey  could 
not  take  the  iron  until  it  was  weighed,  and  that  it  "  could  not 
be  weighed  alongside  the  ship  where  it  had  been  discharged." 

This,  of  course,  goes  for  nothing  as  against  the  contract  of 
the  parties  as  to  where  the  ship's  carriage  should  cease. 

The  consignees  also  urge  a  custom  of  the  port,  as  sworn  to 
by  two  witnesses,  in  these  terms:  "The  term  'taken  from 
alongside,'  in  its  general  acceptation  with  merchants  here, 
does  not  mean  that  the  merchant  is  to  take  it  from  within  a 
foot  or  two  of  the  ship,  but  that  the  ship  is  to  deliver  on  the 
earthwork  as  is  customary  at  this  port." 

The  same  witnesses  say  further:  "The  term  'alongside' 
has  ordinarily  been  construed  here  to  mean  delivery  at  this 
port;  and  as  the  custom-house  authorities  require  that  the 
cargo  shall  be  delivered  on  terra  Jirma,  and  as  the  wharf- 


NOTE.  XXXV 

master  always  insists  that  the  wharf  property  cannot  be 
jeopardized  by  the  delivery  of  any  heavy  weights  on  the 
wood-work,  a  deliveiy  on  the  earthwork  has  almost  always 
been  customary." 

Again,  "according  to  the  custom  of  this  port,  without 
presuming  to  say  anything  as  to  the  law  on  the  subject,  it 
was  the  business  of  the  ship  to  deliver  that  iron  where  the 
custom-house  autliorities  designated." 

Conceding  such  a  custom  as  is  described  in  the  testimony 
of  these  witnesses  to  have  been  proved,  it  is  sufficient  to  say 
that  — 

Ca)  It  is  not  reasonable ;  for  the  customs  authorities  might 
designate  a  particular  pair  of  scales  or  a  particular  ware- 
house for  the  government  weighing  ; 

(6)  Custom  cannot  vary  the  terms  of  an  unambiguous 
contract ; 

(c)  To  allow  such  a  custom  to  come  in  when  the  parties 
have  specified  that  the  cargo  "is  to  be  taken  from  alongside," 
would  be  to  render  nugatory  such  clause. 

Under  the  general  law,  in  the  absence  of  a  special  contract, 
the  carrier  could  have  been  required  to  do  no  more  than  con- 
signees claim  in  this  case.  See  The  Tybee,  1  Woods,  361 ; 
Dibble  v.  Morgan,  1  Woods,  409 ;  and  cases  cited  in  Desty 
on  Shipping,  §  244. 

The  learned  proctors  for  consignees  rely  upon  the  case  of 
The  Delaware,  14  Wall.  603,  where  it  is  said :  "  Evidence 
of  usage  is  admissible  in  mercantile  contracts  to  prove  that 
the  words  in  which  the  contract  is  expressed  in  the  par- 
ticular trade  to  which  the  contract  refers  are  used  in  a 
particular  sense,  and  different  from  the  sense  which  they 
ordinarily  import." 

But  they  should  have  read  the  next  sentence  :  "  Such  evi- 
dence may  be  introduced  to  explain  what  is  ambiguous,  but 
it  is  never  admissible  to  vary  or  contm^ict  what  is  plain." 

The  contract  in  this  case  was  that  the  consignees  should 
take  the  iron  '*  from  alongside." 

That  undoubtedly  and  plainly  means  that  they  were  to 
take  it  from  where  the  ordinary  appliances  of  the  ship  would 
leave  it  in  discharging, — "  at  the  end  of  the  ship's  tackle ; "  on 


xxxvi  NOTE. 

the  wharf,  if  the  ship  was  discharging  at  a  wharf;  on  a 
lighter,  if  the  ship  could  not  reach  a  wharf  and  was  discharg- 
ing in  the  stream. 

The  next  question  is  about  the  responsibility  for  short  de- 
livery. The  bill  of  lading,  supra,  leaves  no  doubt  as  to  the 
quantity  of  iron  received. 

The  government  weighers'  certificates  leave  no  doubt  as  to 
the  quantity  of  iron  received  by  the  consignees. 

There  is  no  reason  to  suppose  that  the  ship  delivered  more 
than  the  consignees  received. 

No  matter  where  the  technical  delivery  took  place,  the 
actual  delivery  was  on  the  earthwork. 

The  ship  undertook  to  put  the  iron  there,  did  so,  and  has 
brought  her  bill  for  the  expense. 

To  assume  that  from  the  "  end  of  the  ship's  tackle  "  to  the 
earthwork  some  of  the  iron  was  lost  is  a  gratuitous  assump- 
tion, wholly  unsupported  by  the  evidence. 

It  is  equally  idle  to  suppose  that  while  the  iron  was  watched 
before  weighing  it  was  carried  off. 

It  seems  to  rae  much  more  probable  that  in  spite  of  the  ef- 
forts of  the  chief  oflScer  to  keep  the  three  lots  of  iron  aboard 
the  "Fifeshire"  separate,  the  said  lots  did  get  mixed,  and  that 
fourteen  tons  of  the  117  lot  were  never  delivered. 

The  stipulation  in  the  bill  of  lading,  "  holding  himself  and 
the  said  vessel  bounJ  to  deliver  the  same  weight  of  iron,  pro- 
vided it  be  weighed  alongside  at  discharging,"  might  have 
controlled  the  ship's  liability  had  it  been  possible  to  have 
weighed  the  iron  alongside.  It  was  not  possible  to  so  weigh 
the  iron,  and  therefore  that  clause  became  nugatory,  the 
same  as  not  written,  and  the  general  Uability  of  carriers  for 
the  non-delivery  of  freight  attached. 

Under  the  evidence  there  can  be  no  doubt  of  the  short 
delivery  on  the  117  tons  of  iron. 

Whether  it  was  not  all  put  aboard,  whether  it  was  lost  on 
the  voyage,  whether  it  was  all  discharged,  whether  it  was 
lost  after  discharging  and  before  delivery  on  the  earthwork, 
or  whether  the  ship  has  some  other  valid  excuse,  it  is  incum- 
bent on  the  ship's  owners  to  show. 

Non-delivery  of  the  goods  shipped  by  a  common  carrier 


NOTE.  xxxvii 

makes  a  prima  facie  case  of  liability  against  the  carrier.  This 
liability  is  not  avoided  by  the  evidence  in  this  case. 

The  libellants  should  recover  a  balance  due  for  freight, 
$269.80,  and  the  charges  for  trucking  the  iron,  $11.70  ;  but 
from  this  amount  should  be  deducted  the  agreed  value  of  the 
iron  not  delivered,  $269.80,  and  this  leaves  a  judgment  for 
libellants  of  $11.70  on  the  whole  case. 

The  libellants  should  pay  the  costs  of  this  court,  and  the 
respondents  those  of  the  District  Court 

So  ordered. 


ADMIRALTY    LAW. 


ADMIRALTY     LAW. 


CHAPTER  I. 

JURISDICTION. 

Sectiox  I.  — district   COURTS. 

Section  663,  paragraph  eight,  of  the  United  States 
Revised  Statutes,  provides  that  the  District  Courts  shall 
have  jurisdiction  of  all  civil  causes  of  admiralty  and 
maritime  jurisdiction ;  savirig  to  suitors  in  all  cases 
the  right  of  a  common-law  remedy,  where  the  com- 
mon law  is  competent  to  give  it ;  and  of  all  seizures  on 
land  and  on  waters  not  within  admiralty  and  maritime 
jurisdiction.  And  such  jurisdiction  shall  be  exclusive, 
except  in  the  particular  cases  where  jurisdiction  of 
such  causes  and  seizures  is  given  to  the  Circuit  Courts. 
And  shall  have  exclusive  and  original  cognizance  of  all 
prizes  brought  into  the  United  States,  except  as  pro- 
vided in  paragraph  six  of  section  629.  (Amended  by 
act  of  Feb.  18,  1875,  ch.  80,  18  Stat.  316.) 

Where  the  admiralty  jurisdiction  of  the  United  States 
courts  attaches  at  all,  it  does  so  exclusively  of  the  juris- 
diction of  the  State  courts.' 

Admiralty  jurisdiction  is  exclusive  in  the  United 
States  courts.  A  State  cannot  confer  it  on  State 
courts.'* 

^  The  Norfolk  and  Union,  2  '  Stewart  r.  Potomac  Ferry  Co., 
Hughes,  123.  12  Fed.  Rep.  20(5  (March,  1882). 

1 


2  ADMIRALTY  LAW. 

A  District  Court  of  the  United  States,  when  acting 
as  a  court  of  admiralty,  can  obtain  jurisdiction  to  pro- 
ceed in  personam  against  an  inhabitiint  of  the  United 
States  not  residing  within  the  district  (within  which 
terms  a  corporation  incorporated  by  a  State  not  within 
the  district  is  meant  to  be  included),  by  attachment 
of  the  goods  or  property  of  such  inhabitant  found  within 
the  district.^ 

The  District  Court  sitting  as  an  admiralty  court  is 
a  court  of  record.^ 

The  decision  of  a  court  of  admiralty,  as  to  whether 
a  vessel  is  a  domestic  or  foreign  vessel,  is  conclusive  in 
a  collateral  action.^ 

Although  a  libel  in  admiralty  is  dismissed  for  want  of 
jurisdiction,  yet  the  libellant  is  not  liable  to  an  action 
of  trespass  by  the  owners  of  the  vessel  that  was  taken 
under  the  warrant* 

If  the  District  Court  had  jurisdiction  in  admiralty 
over  the  parties  in  personam,  but  proceeded  in  rem, 
its  decree  cannot  be  impeached  in  a  collateral  pro- 
ceeding.^ 

The  District  Court  alone  has  original  jurisdiction  in 
causes  of  admiralty  and  maritime  jurisdiction.  Redress 
in  such  causes  must  Be  had  there  or  nowhere.' 

Admiralty  jurisdiction  as  exercised  in  the  federal 
courts  is  not  as  extensive  as  that  exercised  by  the  con- 
tinental courts  organized  under  and  governed  by  the 
principles  of  the  civil  law.^ 

Various  decisions  have  established  that  the  admiralty 

^  Atkins  V.  The  Disintegrating         *  Thompson  v.  Lyle,  3  W.  &  S. 

Company,  18  Wall.  272.  166. 

2  Ward  V.  Chamberlain,  2  Black,         ^  Case  v,  Woolley,  6  Dana,  17. 
430;  Thompson  v.  Lyle,  3  W.  &  S.         •  Jansen  v.  The  Magdalena,  Bee, 

166.  11. 

«  The    Rio    Grande,    23    WaU.         »  The  Belfast,  7  Wall.  624;  Bags 

458.  of  Linseed,  1  Black,  108. 


JURISDICTION.  3 

jurisdiction  of  the  District  Courts  is  not  limited  to  the 
particular  subjects  over  which  the  admiralty  courts  of 
the  parent  country  exercised  jurisdiction  when  our  Con- 
stitution was  adopted ;  and,  upon  the  other  hand,  that 
it  does  not  extend  to  all  cases  which  would  fall  within 
such  jurisdiction,  according  to  the  civil  law  and  the 
practice  and  usages  of  continental  Europe ;  but  its 
nature  and  extent  must  be  determined  by  the  laws  of 
Congress  and  the  decisions  of  the  Supreme  Court,  and 
by  the  usages  prevailing  in  the  courts  of  the  States  at 
the  time  when  the  federal  Constitution  was  adopted.^ 

The  practice  of  the  colonial  admiralty  courts  is 
authority  of  a  very  high  character  upon  the  question 
of  the  extent  of  the  admiralty  and  maritime  juris- 
diction.'^ 

The  general  system  of  maritime  law  which  was  famil- 
iar to  the  lawyers  and  statesmen  of  the  country  when 
the  Constitution  was  adopted,  was  intended  and  referred 
to  when  it  was  declared  that  the  judicial  power  of  the 
United  States  shall  extend  "  to  all  cases  of  admiralty 
and  maritime  jurisdiction."^ 

The  maritime  law  is  operative  only  so  far  as  it  has 
been  adopted  by  the  laws  and  usages  of  the  country.* 

In  the  case  of  Tunno  v.  The  Bark  Betsina,^  the  learned 
judge  well  remarks  that  it  aids  us  very  little  to  deter- 
mine satisfactorily  the  true  nature  and  extent  of  the 
admiralty  and  maritime  jurisdiction  in  the  courts  of  the 
United  States,  to  refer  to  the  opinions  of  the  courts  in 
Great  Britain.     It  is  now  generally  conceded,  he  says, 

1  S.  Ct.  1877,  Ex  parte  Easton,  •  The  Lottawanna,  21  Wall.  558. 

95  U.  S.  (5  Otto)  68.  ••  Ibid. 

a  The  Kate  Tiemaine,  5Ben.  60;  '  5  Am.    Law   Rep.    406,    Mar 

8.C.  4  Am.  L.  Times  (C.  R.),  92;  grath,  J, 
Cunningham  v.   Ilall,   1  Cliff.  43; 
8.  c.  1  Sprague,  404. 


4  ADMIRALTY  LAW. 

that  the  jurisdiction  in  this  court  intended  to  be  exer- 
cised in  the  United  States  is  not  limited,  as  it  was 
known  in  Great  Britain  anterior  to  the  Revolution,  and 
as  declared  by  the  courts  of  that  kingdom.  And  he 
cites  the  cases  of  De  Lovio  v.  Boit,  2  Gall.  400 ;  Pro- 
peller Genessee  Chief  v.  Fitzhugh,  12  How.  443. 

In  cases  of  admiralty  and  maritime  jurisdiction,  the 
competency  of  the  court  does  not  depend  on  the  citizen- 
ship of  the  parties.  The  jurisdiction  is  founded  on  the 
subject-matter,  and  attaches,  whoever  may  be  the  par- 
ties and  wherever  they  may  reside.^ 

The  admiralty  courts  of  the  United  States  have  juris- 
diction of  collisions  occurring  on  the  high  seas  between 
foreign  vessels.^ 

Torts  on  the  high  seas  and  between  foreign  subjects 
may  be  taken  cognizance  of  in  the  courts  of  this 
country.^ 

Section  IL— NAVIGABLE  WATERS. 

The  jurisdiction  depends  upon  the  navigable  charac- 
ter of  the  water,  and  not  upon  the  ebb  and  flow  of  the 
tide.  If  the  water  is  navigable  it  is  public,  and,  if  pub- 
lic, is  within  the  legitimate  scope  of  the  admiralty 
jurisdiction.* 

The  admiralty  jurisdiction  extends  to  the  interior 
navigable  rivers  of  the  United  States.^ 

The  District  Courts  can  take  cognizance  of  all  civil 

1  Peyrouxw.  Howard,  7  Pet.  324;  466;  Jackson  v.  The  Magnolia,  20 
The  Calisto,  2  Ware,  30;  Zollinger    How.  296. 

V.  The  Emma,  3  Cent.  L.  J.  285.  «  Hine  v.  Trevor,  4  Wall.  555; 

2  The  Bergenland,  9  Fed.  Rep.  McGinnis  v.  Pontiac,  5  McLean, 
576,  359 ;  Eads  v.  The  Bacon,  Newb.  274 ; 

«  Johnson  v.  Dalton,  1  Cowen,  Jackson  v.  The  Magnolia,  20  How. 

564.  296;  Cheeseman  ».  The  Two  Ferry 

*  Genesee  Chief  v.  Fitzhugh,  12  Boats,  2  Bond,  363. 
How.  443;  Fritz  v.  BuU,  12  How. 


JURISDICTION.  5 

causes  of  admiralty  jurisdiction  upon  the  lakes  and 
waters  connecting  them,  the  same  as  upon  the  high 
seas,  bays,  and  rivers  navigable  from  the  sea.* 

The  admiralty  jurisdiction  extends  wherever  ships 
float  and  navigation  successfully  aids  commerce,  whether 
internal  or  external.^ 

The  admiralty  jurisdiction  extends  to  all  public  rivers 
as  far  as  they  are  navigable.^ 

Those  waters  are  navigable  in  law  which  are  navi- 
gable in  fact,  and  they  are  public  navigable  waters  in 
fact  when  they  are  used,  or  are  susceptible  of  being 
used,  in  their  ordinary  condition,  as  highways  for  com- 
merce, over  which  trade  and  travel  are,  or  may  be,  con- 
ducted in  the  customary  modes  of  trade  and  travel  on 
water.* 

The  liability  to  temporary  interruptions  of  the  navi- 
gation of  a  river  does  not  destroy  its  character  as  a 
navigable  stream.^ 

The  vital  and  essential  point  is,  whether  the  natural 
navigation  of  the  river  is  such  that  it  affords  a  channel 
for  useful  commerce.  If  this  be  so,  the  river  is  naviga- 
ble in  fact,  although  its  navigation  may  be  encompassed 
with  difficulties  by  reason  of  natural  barriers,  such  as 
rapids  and  sand-bars.^ 

The  admiralty  jurisdiction  of  the  federal  courts  ex- 
tends to  navigable  waters,  though  they  may  be  infra 
corpus  comitatusJ 

»  The  Eagle,  8  Wall.  15;  Gene-  v.  The  Ida  Stockdale,  22  Pitts.  L. 

eee  Chief  «;.  Fitzhugh,  12  How.  443;  J.  9. 

Revenue  Cutter  No.  1,  1  Brown  A.  «  The  General  Cass,  1   Brown, 

&  R.  Cases,  76.  334;  The  Montello,  11  Wall.  411. 

*  Iline  V.  Trevor,  4  Wall.  555.  '  Cheeseman  f.  Two  Ferry  Boats, 

•  The  Jenny  Lind,  Newb.  443;  2  Bond,  363;  Nelson  v.  Leland,  22 
Martin  v.  Acker,  1   Bl.   &  H.  279;  How.  48. 

Huber  v.  Coal  Barges,  3  A.   L.  T.         •  The  Montello,  11  Wall.  411. 
109;  8.  c.  2  C.  L.  N.  270;  Comings        '  Waring  v.  Clarke,  5  How.  441; 


6  ADMIRALTY  LAW. 

The  admiralty  jurisdiction  embraces  bays,  harbors, 
and  inlets,  although  they  are  within  the  territorial 
limits  of  a  State.^ 

The  admiralty  has  jurisdiction  over  navigable  rivers, 
although  they  are  wholly  within  the  boundary  of  a 
State  .2 

In  June,  1882,  the  Louisiana  Supreme  Court  ren- 
dered a  decision  (not  yet  reported),  from  which  1 
extract  the  following :  — 

James  Hamilton  v.  The  Vicksburg,  Shreveport,  and  Pacific 
Raih"oad  Company,  No.  1052.  Appeal  from  the  District 
Court,  Ouachita  Parish.  Plaintiffs  object  is  to  recover  dam- 
ages exceeding  $12,000,  alleged  to  have  been  caused  him  by 
the  defendant  corporation,  in  consequence  of  an  unlawful 
obstruction  on  the  Boeuf  River,  a  navigable  stream,  on  which 
plaintiff  was  running  a  steamboat. 

The  ans^wer  is  a  general  denial,  coupled  with  the  special 
averment  that  defendant,  incorporated  under  the  laws  of  the 
State,  had  the  right  of  building,  repaiiing,  and  rebuilding 
necessary  bridges  over  all  streams  along  its  line. 

The  case  was  tried  by  a  jury,  who  found  a  verdict  of  11,000 
in  favor  of  plaintiff;  and  both  parties  have  appealed. 

Now,  we  hold  that  under  its  charter,  by  which  it  was  em- 
powered and  authorized  to  construct,  make,  and  maintain  a 
railroad  from  a  point  on  the  Misr^issippi  River,  opposite  Vicks- 
burg, thence  west  to  the  line  of  the  State  of  Texas  through  to 
Monroe  and  Shreveport,  the  company  had  the  undoubted 
right  to  build  all  the  necessary  bridges  across  any  navigable 
stream  in  the  course  of  its  line,  and  that  the  legislature  had 
the  power  to  confer  such  right.     "The  grant  of  power  to 

Phila.,  W.,  &  B.  R.  R.  Co.  v.  Tow-  New  World  v.  King,  16  How.  469; 

boat  Co.,  23  How.  209  ;  Jackson  v.  Thomas  v.  Gray,  1  Bl.  &  H.  493. 
The  Magnolia,  20  How.  296;  The         ^  Ware  v.  Hyer,  2  Paine,  131; 

Commerce,  1  Black,  574 ;  Monteith  The  Martha  Anne,  01c.  18. 
V.  Kirkpatrick,  3  Blatch.  279;  Nel-         »  Jackson  v.  The  Magnolia,  20 

son  V.  Leland,  22  How.  48;  Robert  How.    296  ;    Taylor    v.    Harwood, 

i;.   Skolfield,    3   Ware,    184;    The  Taney,  437. 


JURISDICTION.  7 

construct  a  railway  between  two  points  carries  authority  to 
cross  navigable  waters,  if  that  is  reasonably  necessary  in  the 
construction  of  the  works."  Redfield,  page  322,  note ; 
5  Allen,  221. 

It  is  also  unquestioned  that  "  the  State  legislatures  have 
unlimited  power  to  erect  bridges  and  railways,  and  make  any 
other  public  works  across  navigable  waters,  subject  only  to 
the  paramount  authority  of  the  national  government." 

Redfield,  323  ;  and  Saratoga  Railroad  Co.,  15  Wend.  (N.  Y.) 
113 ;  Gillman  v.  Philadelphia-,  3  Wall.  715 ;  The  Wheeling 
Bridge  Case,  18  How.  432;  The  Blackbird  Creek  Marsh 
Company's  Case,  2  Pet.  245;  Worths  v.  Junction  Railroad 
Co.,  5  McLean,  425. 

These  principles,  resting  on  foundations  of  reason  as  well 
as  of  law  and  authority,  giving  the  right  to  build  necessary 
bridges,  necessarily  imply  not  only  the  right,  but  the  duty,  of 
the  company  to  keep  and  maintain  them  in  such  repair  as  the 
public  safety  may  require.  Hence  the  legal  right  of  the 
defendant  company  to  rebuild  the  bridge  in  question,  which 
had  been. pronounced  unsafe  by  competent  authority. 

The  delay  was  caused  by  accidents  and  circumstances  over 
which  the  company  had  no  possible  control,  and  for  which  it 
cannot  be  held  responsible  in  justice  or  in  law.  In  the  case 
of  the  Memphis  &  Ohio  Railroad  Co.  v.  Hicks,  5  Sneed 
(Tenn.),  p.  427,  it  was  held  that  "  the  provision  in  the  charter 
of  a  railway  company  authorizing  it  to  bridge  a  navigable 
stream,  provided  that  the  navigation  of  the  stream  shall  not 
be  obstructed,  is  not  violated  by  a  temporary  obstruction  of 
the  stream  by  scaffolding,  &c.,  in  the  construction  of  the 
bridges."  The  present  case  presents  circumstances  clearly 
entitling  the  defendant  to  the  protection  of  the  rule  of  dam- 
num absque  injuria,  and  we  are  therefore  compelled  to 
exonerate  it  from  any  res[)onsibility  for  the  damages  result- 
ing from  the  temporary  obstruction  to  the  navigation  of  Boeuf 
River,  in  its  attempt  to  rebuild  a  necessary  bridge.  Ranson 
V.  Labranche,  16  Annual,  121;  11  Annual,  711;  15  Annual, 
559  ;  27  Annual,  442 ;  Weeks,  Damnum  Absque  Injuria,  par. 
48,  49. 


8  ADMIRALTY  LAW. 

This  conclusion  eliminates  from  the  discussion  the  ques- 
tion of  the  damages  which  plaintiff  may  or  may  not  have  suf- 
fered from  the  obstruction  of  the  river,  which  is  thus  shown 
not  to  have  been  unlawful. 

It  is  therefore  ordered,  adjudged,  and  decreed  that  the 
verdict  of  the  jury  be  set  aside,  and  the  judgment  of  the 
lower  court  annulled,  avoided,  and  reversed,  and  it  is  now 
ordered  that  plaintiffs  demand  be  rejected  and  his  action  dis- 
missed at  his  costs  in  both  courts. 

Honorable  Associate  Justice  Charles  E.  Fenner  read 
the  following  opinion  on  application  for  rehearing :  — 

It  is  proper  to  state  that,  in  this  case,  the  evidence  estab- 
lishes that  Boeuf  River,  the  stream  across  which  the  bridge  was 
built,  lies,  as  a  navigable  stream,  wholly  within  the  limits  of 
the  State  of  Louisiana;  although  the  upper  portion  of  the 
stream  itself  lies  in  Arkansas,  it  is  not  navigable  as  high  up 
as  the  Arkansas  line.  The  authority  of  Congress  over  navi- 
gable streams  is  an  incident  of  the  power  to  regulate  com- 
merce among  the  States,  and  only  affects  rivers  which  are 
highways  of  commerce  between  different  States.  As  to 
streams  which  are  navigable  only  within  the  limits  of  a  single 
State,  the  authority  of  its  legislature  is  complete.  Penn.  v. 
Wheeling  Bridge  Co.,  18  How.  432  ;  1  Redfield  on  Railways, 
§  78,  notes,  and  authorities  cited.  This  makes  it  clear  that  in 
the  instant  case,  the  authority  derived  from  the  legislative 
action  of  the  State  did  not  conflict,  under  any  view,  with 
any  paramount  authority  of  the  federal  government. 

Rehearing  refused. 

The  admiralty  jurisdiction  embraces  ports  and  ha- 
vens as  a  portion  of  the  high  seas.^ 

The  jurisdiction  of  the  admiralty  does  not  necessarily 
extend  over  every  stream  whose  occasional  floods  or 
fictitious  basins  may  suffice  to  float  a  steamboat.^ 

1  American  Ins.  Co.  ».  Johnson,         ^  Jones  v.  Coal  Barges,  3  "Wall. 
1  Bl.  &  H.  9;  The  Lottv,  01c.  329;    Jr.  58. 
Borden  v.  Hiern,  1  Bl.  &  H.  293. 


JURISDICTION.  9 

An  artificial  canal  opened  by  a  State  to  public  use 
for  purposes  of  commerce,  and  while  in  fact  used  as  a 
highway  of  commerce  between  the  States,  or  between 
foreign  countries  and  the  United  States,  is  navigable 
Wfater,  within  the  meaning  of  that  term  as  used  to  de- 
fine and  limit  the  jurisdiction  of  courts  of  admiralty.^ 

Section  III.— MATTERS  OF  CONTRACT. 

The  fundamental  query  is,  whether  the  contract  is 
or  is  not  a  maritime  contract.  If  it  is,  the  jurisdiction 
is  asserted ;  if  it  is  not,  the  jurisdiction  is  denied. 
Whether  a  contract  is  maritime  or  not  depends  not  on 
the  place  where  the  contract  was  made,  but  on  the 
subject-matter  of  the  contract.  K  that  is  maritime, 
the  contract  is  maritime.^ 

The  indorsee  of  a  bill  of  lading  may  libel  the  vessel 
on  which  goods  are  shipped,  for  failure  to  deliver  them, 
though  he  be  but  an  agent  or  trustee  of  the  goods  for 
others,  ex.  gr.  the  cashier  of  a  bank.^ 

The  jurisdiction  in  admiralty  does  not  include  pre- 
liminary contracts  merely  leading  to  the  execution  of 
maritime  contracts.* 

A  contract  for  the  use  or  rent  of  libellant's  dry  dock 
is  a  contract  maritime  in  its  nature,  and  consequently 
cognizable  in  the  admiralty.^ 

Claims  for  wharfage  are  cognizable  in  the  admiralty .• 

A  court  of  admiralty  has  jurisdiction  of  an  action  in 

1  Malony  v.  City  of  Milwaukee,  Mason,  6,  16;  The  Crusader,  Ware, 

1    Fed.    Rep.    611;    The    Oler,    2  437^40. 

Hughes,  12;  The  Avon,  1  Brown,         »  The  Vidal  Sala,  12  Fed.  Rep. 

170.  207,  Erskine,  D.  J.,  April  24,  1882. 

"^  Insurance  Co.  v.  Dunham,   11  (This  was  a  libel  m  rem  for  use  of 

Wall.  1;  The  Plymouth,  3  Wall.  20.  dry  dock.)     The  Steamship  Missis- 

•  The  Thames,  14  Wall.  98.  eippi,  6  Fed.  Rep.  543. 

*  The  Essex  F.  &  M.  Ins.  Co.,  3         «  Ex  parte  Easton,  95  U.  S.  68. 


10  ADMIRALTY  LAW. 

collision  in  which  it  is  sought  to  recover  damages  for  the 
loss  of  life  caused  by  a  collision,  although  it  is  not  cer- 
tain that  a  vessel  is  liable  for  the  loss  of  life,  as  it  is  for 
the  damage  to  vessel  and  cargo.^ 

Cases  arising  quasi  ex  contractu,  where  the  transaction 
in  nature  and  effect  appertains  to  navigation,  are  cases 
in  admiralty  as  much  as  cases  depending  upon  volun- 
tary agreements. '^ 

The  true  criterion  by  which  to  determine  whether 
any  water  craft  or  vessel  is  subject  to  admiralty  juris- 
diction, is  the  business  or  employment  for  which  it  is 
intended,  or  is  susceptible  of  being  used,  or  in  which  it 
is  actually  engaged,  rather  than  its  size,  form,  capacity, 
or  means  of  propulsion.^ 

Canal-boats  employed  in  transporting  goods  on  navi- 
gable waters  are  subject  to  the  admiralty  jurisdic- 
tion.* 

A  floating  elcA'ator  placed  upon  the  hull  of  a  canal- 
boat,  which  is  used  for  the  purpose  of  transferring  grain 
from  one  vessel  to  another,  is  subject  to  the  admiralty 
jurisdiction.^ 

Ferryboats  designed  for  the  transportation  of  per- 
sons and  property  across  a  navigable  river  are  subject 
to  admiralty  jurisdiction.^ 

A  scow  which  is  used  only  in  port  for  carrying  bal- 

*  Ex  parte  (Gordon,  decided  No-  v.  The  John  B.  Cole,  4  N.  Y.  Leg. 
vember,  1881.  Opinion  in  The  Re-  Obs.  373.  Cnn>rn,  The  Ann  Arbor, 
porter,  Boston,  Mass.,  Aprils,  1882;  4  Blatchf.  205;  McCormick  y.  Ives, 
16    American    Law    Review,    483.  1  Abb.  Adm.  418. 

(Since  reported  in  14  Otto,  515.)  *  The  Hezekiah  Baldwin,  8  Ben. 

2  Banta  v.  McNeil,  5  Ben.  74.  556. 

*  The  General  Cass,  1  Brown,  •  The  Cheeseman  v.  Two  Ferrj-- 
334.  boats,  2  Bond,  263;  Murray  v.  The 

*  The  Kate  Tremaine,  5  Ben.  F.  B.  Nimick,  2  Fed.  Rep.  86. 
60;  The  E.  M.  Chesney,  8  Ben.  150;  Contra,  Thackarey  v.  The  Farmer, 
8.  c.  15  Blatchf.   183;  The  W.  J.  Gilp.  524. 

Walshe,  5  Ben.  72;  Van  Santwood 


JURISDICTION.  11 

last  to  and  from  a  vessel  is  subject  to  admiralty  juris- 
diction.^ 

Lighters  employed  on  navigable  waters  in  the  car- 
riage of  goods  to  and  from  vessels  are  within  the  juris- 
diction.'^ 

A  scow  which  is  used  in  carrying  lumber  to  a  vessel 
is  within  the  admiralty  jurisdiction.^ 

Although  ivghoats  are  employed  in  harbor  service 
within  the  body  of  a  county,  yet  admiralty  has  juris- 
diction over  a  collision  between  them,  if  they  are 
employed  as  links  of  transportation  in  inter-state 
commerce.* 

Coal-barges,  which  are  mere  open  chests  or  boxes  of 
small  comparative  value,  and  are  floated  by  the  stream 
and  sold  for  lumber  at  the  end  of  the  voyage,  are  not 
ships  or  vessels  in  the  maritime  sense  of  the  terms,  and 
are  not  within  the  maritime  jurisdiction.^ 

Flatboats  are  not  within  the  admiralty  jurisdiction.* 

Rafts  are  not  the  subject-matter  of  admiralty  juris- 
diction in  cases  where  the  right  of  property  or  posses- 
sion is  alone  concerned.  They  are  not  vehicles  in- 
tended for  the  navigation  of  tlie  sea  or  arms  of  the  sea. 
They  are  not  recognized  as  instruments  of  commerce 
or  navigation.  They  are  piles  of  lumber,  and  noth- 
ing more.^ 

A  derrick-boat  is  a  subject  of  a  libel  in  admiralty  to 
recover  compensation  for  salvage  services.® 

^  Endner  v.  Greco,  3  Fed.  Rep.         •  Ibid. 
411.  ''  Tome  v.  Four  Cribs  of  Lumber, 

2  Thackarey    ».     The    Farmer,  Taney,   .5:J3  ;    Jones   v.   The    Coal 

Gilp.  524.  Barges,  3  Wall.  Jr.  53;  Gastrel  r. 

'  The  General  Cass,  1   Brown,  A  Cypress   Raft,  2  Woods,  213;  A 

334.  Raft  of   Cypress   Logs,  1   Flippen, 

*  The  Volunteer,  1  Brown.  1.59.  543  (1881). 

'  Jones  V.  The   Coal  Barge.s,   3         •  Maltby  r.  Steam  Derrick  Boat, 

Wall.  Jr.  53.     (This  applies  not  in  3  Hughes,  477. 
some  cases.  —  M.  M.  C.) 


12  ADMIRALTY  LAW. 

Boats  employed  in  the  neighborhood  of  a  city,  in 
carrying  produce  to  the  market,  are  subject  to  the 
admiralty  jurisdiction.^ 

Services  to  stationary  docks  are  not  the  subject  of 
salvage  compensation,  nor  are  they  of  maritime  or  ad- 
miralty jurisdiction.^ 

The  case  just  cited  was  a  libel  in  personam  for  sal- 
vage, or  for  services  claimed  to  be  in  the  nature  of 
salvage  services.  Judge  Dillon,  in  delivering  the  opin- 
ion of  the  Circuit  Court,  said :  — 

The  law  of  salvage  grows  out  of  navigation,  and  is  intended 
to  promote  the  interests  of  those  engaged  in  navigating  ves- 
sels which  are  the  instruments  of  commerce  and  trade,  and  of 
those  whose  property  is  exposed  to  the  perils  of  the  sea,  by 
awarding  liberal  compensation  to  tlie  persons  by  whose  assist- 
ance such  property  is  rescued  from  impending  peril  or  saved 
after  actual  loss.  Abbott  on  Shipping,  554.  And  because 
such  services  are  connected  with  navigation  and  commerce 
or  trade,  the  court  of  admiralty  has  jurisdiction  to  fix  the 
amount  of  compensation  and  to  enforce  a  maritime  lien  there- 
for ;  and  such  jurisdiction  and  lien  are  necessary,  because  the 
owners  of  the  property  saved  may  be  unknown,  or  distant,  or 
irresponsible.  No  such  reason  or  necessity  exists  in  respect 
to  fixed  structures,  such  as  these  docks.  In  denying  salvage 
compensation  for  taking  up  and  securing  rafts  afloat  in  public 
navigable  waters,  Chief  Justice  Taney  uses  language  which 
applies  here.  He  says,  rafts  "  are  not  vehicles  intended  for 
the  navigation  of  the  sea,  or  the  arms  of  the  sea ;  they  are  not 
recognized  as  instruments  of  commerce  or  navigation  by  any 
act  of  Congress  ;  they  are  piles  of  lumber  and  nothing  more, 
fastened  together  and  placed  upon  the  water  until  suitable 
vehicles  are  ready  to  receive  and  to  support  it  to  its  destined 
port.     And  any  assistance  rendered  to  these  rafts,  even  when 

^  Reppert  v.   Robinson,  Taney,  tional  Dock  Co.,  Central  Law  Jour- 

492  ;     The    Elraira    Sheppard,     8  nal,   640  (St.  Louis,  Oct.  6,  1878), 

Blatchf.  341.  not  published  in  Dillon's  Reports. 

*  Salvor  Wrecking  Co.  v.  Sec- 


JURISDICTION.  13 

in  danger  of  being  broken  up  or  swept  down  the  river,  is  not 
a  salvage  service,  in  the  sense  in  which  that  word  is  used  iu 
the  courts  of  adinhalty."  Tome  v.  Four  Cribs  of  Lumber, 
Taney,  533. 

Assuming  that  the  allegations  of  the  libel  are  broad  enough 
to  justify  the  court  in  treating  the  libel  as  one  to  enforce  a 
contract,  or  to  recover  compensation  upon  general  principles 
for  the  services  rendered  in  raising  the  docks,  I  am  of  opinion 
that  the  contract  or  services  do  not  relate  to  the  navigation, 
business,  or  commerce  of  the  sea  or  public  navigable  waters, 
in  such  a  sense  as  to  make  the  contract  or  services  maritime. 
The  admiralty  jurisdiction  and  the  peculiar  liens,  rights,  and 
remedies  which  the  admiralty  recognizes  and  enforces,  spring 
out  of  the  movable  character  of  the  vessels  and  vehicles  which 
are  the  instruments  of  navigation,  commerce,  and  trade.  None 
of  the  reasons  upon  which  this  jurisdiction  is  founded,  and 
these  rights  and  remedies  are  given,  apply  to  the  stationary 
docks  here  in  question  ;  and  my  best  judgment  is  that  the 
controversy  between  these  parties  belongs  to  the  courts  of 
common  law,  and  not  to  the  court  of  admiralty. 

The  decree  below  against  the  dock  company  is  reversed, 
and  the  libel  dismissed  as  to  all  the  respondents  ;  but  as  the 
question  of  jurisdiction  was  not  raised  until  after  the  proofs 
were  taken,  each  party  must  bear  the  costs  he  has  in- 
curred, except  that  the  costs  iu  this  court  must  be  paid  by 
the  libellants. 

On  this  decision  the  editor  of  the  "Central  Law 
Journal  "  makes  a  note,  which  is  so  valuable  that  I  ap- 
pend it  in  its  entirety ;  — 

Note.  —  By  the  general  admiralty  law,  maritime  contracts 
include  maritime  services  in  building,  repairing,  supplying, 
and  navigating  ships,  and  the  admiralty  jurisdiction  in  the 
United  States  extends  to  all  maritime  contracts;  t.  e.,  con- 
tracts which  relate  to  the  navigation,  business,  or  commerce  of 
the  sea.  De  Lovio  v.  Boit,  2  Gall.  398,  475.  The  settled 
doctrine  in  this  country  is,  that  the  admiralty  jurisdiction  ex- 
tends to  all  maritime  contracts,  and  "  whether  a  contract  be 


14  ADMIRALTY  LAW. 

maritime  or  not  depends  not  on  the  place  where  the  contract 
was  made,  but  on  the  subject-matter oi  the  contract;  .  .  .  the 
true  criterion  is  the  nature  and  subject-matter  of  the  contract, 
as  to  whether  it  is  a  maritime  contract,  having  reference  to 
maritime  service  or  maritime  transactions."  Insurance  Co.  v. 
Dunham,  11  Wall.  26,  29. 

A  contract  for  building  a  vessel  was  held  to  be  not  a  mari- 
time contract,  because  made  on  land  and  to  be  performed  on 
land.  Ferry  Co.  v.  Beers,  20  How.  393,  401.  But  this  de- 
cision is  not  to  be  extended  by  implication.  Insurance  Co.  v. 
Dunham,  11  Wall.  28.  Locality  of  the  place  where  made,  as 
a  test  of  the  maritime  nature  of  contracts,  is  lejected  in  this 
country.  A  ferryboat  on  the  Ohio  River  may  be  the  subject 
cf  a  salvage  service.     The  Cheeseman  v.  Two  Ferry  Boats, 

2  Bond,  363.  The  learned  Judge  Leavitt  in  that  case  ex- 
pressed the  opinion  that  salvage  service  could  not  be  restricted 
to  a  service  rendered  to  a  vessel  or  the  cargo  of  a  vessel,  but 
extended  to  all  cases  where  valuable  property  is  adrift  or 
afloat,  and  is  rescued  from  peril  on  any  water  over  which  the 
admiralty  jurisdiction  extends.  lb.  pp.  372-376.  Tliis  view 
he  considered  to  find  support  in  the  decisions  in  which  steam- 
boats have  been  libelled  in  admiralty  for  injuries  to  flatboats 
and  their  cargoes,  of  which  Fritz  v.  Bull,  12  How.  466  ;  Cul- 
bertson  v.  Shaw,  18  How.  585  ;  and  Nelson  v.  Leland,  22  How. 
48,  are  mentioned  as  examples.  And  he  adds:  "  If,  in  colli- 
sion cases,  jurisdiction  in  admiralty  can  be  maintained,  when 
the  injury  is  not  to  a  vessel  or  the  cargo  of  a  vessel  [not 
required  to  be  enrolled  or  licensed],  it  results  inevitably  that 
it  may  be  maintained  for  a  salvage  service  in  saving  property 
not  within  either  of  those  categories."  And  he  supports  his 
conclusions  by  pointing  out  the  inadequacy  of  the  drift  laws 
of  the  States.  Judge  Nelson  was  inclined  to  regard  a  canal- 
hoat  as  not  being  a  boat  or  vessel,  though  upon  navigable 
waters,  in  such  a  sense  as  to  subject  it  to  a  maritime  lien  for 
breach  of  a  contract  of  affreightment.  The  Ann  Arbor, 
4  Blatchf.  205  (1858).     See  similar  view,  Buckley  v.  Brown, 

3  Wall.  199  (1856),  per  Grier,  J. ;  Jones  v.  Coal  Barges,  3  Am. 
Law  Reg.  391.     But  a  lighter  was  held  to  be  subject  to  the 


JURISDICTION.  1 5 

admiralt}'  jurisdiction.  The  General  Cass,  4  Ch.  Legal  News, 
89.  So  a  ferryboat.  The  Cheeseman  v.  Two  Ferry  Boats, 
2  Bond,  363. 

The  claim  of  the  owner  of  a  ship-yard  in  hauling  up  a  ves- 
sel on  his  ways,  and  for  the  use  of  the  ways,  is  a  claim  of  a 
maritime  nature,  enforceable  in  admiralty.  Wortman  v.  Grif- 
fith, 3  Blatchf.  528  (1856),  Nelson,  J.  But  see  previous  case 
of  Ransom  v.  Mayo,  3  Blatchf.  70  (1853),  where  the  admiralty 
was  held  not  to  have  jurisdiction  of  a  claim  by  the  owner  of 
the  vessel  against  the  owner  of  the  ways,  for  the  negligence 
of  the  latter  in  hauling  the  vessel  up  on  the  ways. 

A  dismantled  steamboat  fitted  up  for  a  saloon  is  not  a  subject 
of  admiralty  jurisdiction.     The  Hendrik  Hudson,  6  Ben.  419. 

A  barge  adrift  is  subject  of  salvage  service.  Seven  Coal 
Barges,  2  Biss.,  297.  So  of  a  box  of  bullion.  A  Box  of 
Bullion,  1  Sprague,  57. 

A  maritime  lien  cannot  exist  upon  a  bridge  ;  and  the 
opinion  was  expressed  in  a  libel  in  rem  against  a  bridge  for  a 
maritime  tort,  that  a  lien  "  could  only  exist  upon  movable 
things  engaged  in  navigation,  or  upon  things  which  are  the 
subject  of  commerce  on  the  high  seas  or  navigable  waters, 
such  as  vessels,  steamers,  and  rafts,  and  upon  goods  and  mer- 
chandise carried  by  them,  but  not  upon  anything  fixed  and 
immovable,  like  a  wharf,  a  bridge,  or  real  estate  of  any  kind." 
The  Rock  Island  Bridge,  6  Wall.  213.  But  a  vessel  injured 
by  any  obstruction  in  navigable  watei"S  may  sue  in  personam 
in  the  admiralty,  —  locality  giving  the  jurisdiction  in  cases  of 
maritime  torts.  Atlee's  Case,  21  Wall.  389.  In  Tome  i».  Four 
Cribs  of  Lumber,  Taney,  533  (1853),  it  was  held  by  Taney, 
Ch.  J.,  that  taking  up  and  securing  rafts  afloat  in  public  navi- 
gable waters  was  not  a  salvage  service,  but  rather  in  the 
nature  of  a  mere  finding,  citing  Nicholson  v.  Chapman,  2  H. 
Bfeck.  254,  relating  to  a  quantity  of  lumber,  and  in  which 
salvage  was  denied,  and  The  Uduon  (a  flatboat),  2  Hagg.  3. 
One  ground  of  the  decision  of  Taney,  Ch.  J.,  was,  that  rafts 
"are  not  vehicles  intended  for  the  navigation  of  the  sea,  or 
the  arms  of  the  sea  ;  they  are  not  recognized  as  instruments 
of  commerce  or  navigation  by  any  act  of  Congress ;  they  are 


16  ADMIRALTY  LAW. 

piles  of  lumber  and  nothing  more,  fastened  together  and 
placed  upon  the  water  until  suitable  vehicles  are  ready  to 
receive  and  transport  it  to  its  destined  port.  And  any  assist- 
ance rendered  to  these  rafts,  even  when  in  danger  of  being 
broken  up  or  swept  down  the  river,  is  not  a  salvage  service, 
in  the  sense  in  which  that  word  is  used  in  the  courts  of  ad- 
miralty."    As  to  rafts,  see  1  Abb.  Adm.  485;  2  Wm.  Rob.  251. 

The  jurisdiction  of  the  District  Court  over  a  case  of  salvage 
service  on  the  Mississippi  River  is  not  questioned  by  counsel, 
and  does  not  admit  of  question.  Seven  Coal  Barges,  2  Biss. 
297,  300,  citing  The  Genessee  Chief,  12  How.  443.  The 
Hine  v.  Trevor,  4  Wall.  555.  The  Tug  Eagle,  U.  S.  Sup. 
Ct.  1869-70. 

Coal  barges  adrift  on  the  Ohio  may  be  the  subject  of  sal- 
vage service.  Seven  Coal  Barges,  2  Biss.  297(Drumraond,  J., 
Davis,  J.,  concurring). 

"  The  object  of  the  law  of  salvage  is  to  promote  commerce 
and  trade,  and  the  general  interests  of  the  country,  by  pre- 
venting the  destruction  of  property,  and  to  accomplish  this 
by  appealing  to  the  personal  interest  of  the  individual  as  a 
motive  of  action,  with  the  assurance  that  he  will  not  depend 
upon  the  owner  of  the  property  he  saves  for  the  measure  of 
his  compensation,  but  to  a  court  of  admiralty,  governed  by 
principles  of  equity."  Per  Drummond,  J.,  Seven  Coal 
Barges,  2  Biss.  297,  302  (1870). 

In  the  case  of  Edmond  L.  Cope  et  al.  v.  Vallette  Dry- 
Dock,  No.  11,802  of  the  docket  of  the  United  States 
District  Court  for  the  District  of  Louisiana,  in  a  cause 
of  salvage,  I  filed,  on  23d  December,  1881,  a  plea  to 
the  jurisdiction,  on  the  following  grounds  :  — 

That  any  assistance  rendered  to  their  dry  dock  is 
not  a  salvage  service  in  the  sense  in  which  that  word  is 
used  in  courts  of  admiralty :  — 

That  the  Vallette  dry  dock  is  not  manned  by  a 
master  and  crew,  and  is  not  devoted  to  the  purposes  of 
transportation  and  commerce,  or  to  either :  — 


JURISDICTION.  17 

That  the  said  dry  dock  is  not  a  vehicle  intended  for, 
or  capable  of,  navigation :  — 

That  such  structures  as  this  dry  dock  are  not  recog- 
nized as  instruments  of  commerce  or  navigation  by  any 
act  of  Congress : 

That  said  dry  dock  is  not  registered,  or  enrolled,  or 
licensed,  or  required  by  any  law  to  be  either  of  these  :  — 

That  said  dry  dock  is  nothing  more  than  pieces  of 
lumber  fastened  together  and  placed  upon  the  water  to 
receive  vessels  for  repair,  and  having  engines  used  not 
for  purposes  of  locomotion  from  one  wharf  or  port  to 
another,  of  which  change  of  place  by  her  own  re- 
sources this  dry  dock  is  incapable,  but  solely  to  lower 
and  elevate  said  dock  in  order  to  receive  vessels  for 
repair :  — 

That  said  dry  dock  was,  at  the  date  when  said  sal- 
vage services  are  in  said  libels  alleged  to  have  been 
rendered,  used  solely  in  the  business  of  docking  and 
repairing  vessels,  and  has  always  been  so  employed, 
and  not  otherwise  :  — 

That  said  dry  dock,  at  the  time  of  the  alleged  sal- 
vage services,  was  moored  and  lying  at  its  usual  place 
where  it  has  been  located  ever  since  the  latter  part  of 
the  year  1866,  and  where  it  now  is:  — 

That  the  business  and  employment  for  which  it  was  and 
is  intended,  and  was  and  is  susceptible  of  being  used,  and 
in  which  it  has  been  actually  engaged  ever  since  it  was 
constructed,  and  its  form,  capacity,  and  want  of  means 
of  propulsion,  all  render  it  not  subject  to  admiralty 
jurisdiction  in  a  cause  of  salvage,  civil  and  maritime :  — 

That  it  has  never  been  engaged  in  commerce  or  navi- 
gation, and  is  not  capable  of  being  employed  in  either : — 

That  from  its  purpose  and  business  it  is  not  an  in- 
strument of  naval  transportation. 

2 


18  ADMIRALTY  LAW. 

Upon  this  plea,  the  judge  of  that  court  (the  Hon.  E. 
C.  BilHngs)  rendered  the  following  decision  :  — 

This  case  has  been  heard  upon  a  plea  to  the  jurisdiction. 
The  question  submitted  is,  whether  the  thing  libelled  is  of 
such  a  nature  or  character  as  to  make  it  subject  to  a  salvage 
in  the  sense  in  which  that  word  is  used  in  admiralty. 

The  subject  of  this  libel  is  a  dry  dock,  —  a  floating  dock,  — 
susceptible  of  elevation  or  depression  in  the  water  by  means 
of  pumping  out  or  in  the  water.  Its  design  and  use  is  to 
be  sunk  under  a  vessel  and  then  to  be  pumped  out,  so  as 
to  become  dry,  leaving  the  vessel  in  a  position  to  be  inspected 
and  repaired.  It  is  incapable  of  self-propulsion,  cannot  be 
propelled  except  when  towed,  and  was  permanently  moored 
in  the  Mississippi  River  by  means  of  enormous  chains,  at  a 
point  opposite  the  city  of  New  Orleans.  The  libel  alleges 
the  dock  had  been  run  into,  was  sinking,  and  was  saved. 

The  question  turns  entirely  upon  the  meaning  of  the 
expression  "  admiralty  and  maritime  jurisdiction,"  in  the 
provision  of  the  Constitution  of  the  United  States  (art.  2, 
§  3)  which  creates  the  judicial  power,  and  in  the  ninth  section 
of  the  Judiciary  Act  of  1789,  which  delegates  that  power 
to  the  District  Courts. 

k  It  has  been  laid  down  by  Chancellor  Kent  and  Justice  Story, 
and  is  affirmed  by  the  Supreme  Court  in  Insurance  Co.  v. 
Dunham,  11  Wall.  1,  and  Ex  parte  Easton,  5  Otto,  68,  that  this 
jurisdiction  means  that  jurisdiction  which  had  been  and  was 
being  exercised  in  admiralty  in  this  country  prior  to  and  at 
the  time  of  the  adoption  of  the  Constitution,  and  not  the 
jurisdiction  of  England,  nor  that  of  continental  Europe.  So 
far  as  extent  of  locality  is  concerned,  in  the  courts  of  tlie 
United  States,  it  comprised  the  navigable  waters  of  the  nation 
as  well  as  the  high  seas. 

As  to  what  was  included  within  this  jurisdiction,  my  own 
opinion  is  that  we  can  most  safely  look  to  the  commissions  of 
the  judges  in  admiralty  before  and  at  the  time  of  the  Revo- 
lution. A  number  of  these  commissions  are  given  in  extenso 
in  Benedict's  Admiralty,  ch.  9.    Nine  commissions  show  what  ' 


JURISDICTION.  19 

contracts  are  included  in  that  jurisdiction  :  namely,  charter- 
parties,  bills  of  hiding,  policies  of  insurance,  &c.  ;  they  show 
that  locally  it  included  the  sea,  public  streams,  &c. ;  what 
torts  were  included  within  it ;  and,  lastly,  what  can  be  the 
subject-matter  of  salvage;  for  beside  everything  pertaining 
directly  tea  ship,  or  things  used  in  navigation,  they  add: 
"  And  also  of  and  concerning  all  casualties  at  sea,  goods 
wrecked,  flotsam,  jetsam,  ligan,  shares,  things  cast  over- 
board, and  wreck  of  the  sea,  and  all  things  taken  or  to  be 
taken,  as  derelict,  or  by  chance  found  or  to  be  found." 

If  one  was  most  laboriously  to  prepare  from  all  the  admi- 
ralty reports  which  have  been  acquiesced  in  an  enumeration 
of  the  things  which  can  be  subjected  to  a  claim  for  salvage, 
it  could  scarcely  be  more  exact.  It  is  to  be  seen  that  it  in- 
cludes the  vessel  or  ship,  wrecked  goods,  goods  which  float 
away  or  are  cast  away,  or  which  sink  from  the  ship,  and  to 
this  enumeration  are  added  derelict  things  and  things  found. 

The  reason  of  this  precise  discrimination  is,  that  with  the 
exception  of  derelict  and  things  found,  and  the  ship,  her 
cargo  and  freight,  there  could  be  no  basis  in  reason  for  a  lien 
which  must  exist  in  order  to  support  a  libel  in  rem.  The 
ship,  and  all  things  which  pertain  to  it,  is  in  the  law  of  admi- 
ralty clothed  with  personality,  so  far  as  responsibility  goes. 
Those  who  repair  or  loan  upon  her,  or  equip  or  man  her,  and 
those  who  deal  with  her,  and  those  who  are  injured  by  her, 
and  those  who  save  her,  look  to  her.  The  reason  of  this 
is  that  she  was  often  far  distant  from  her  home  and  own- 
ers, and  commerce  was  vastly  facilitated  by  the  law  thus 
endowing  her  with  the  attributes  of  a  person.  This  is  the 
origin  of  the  maritime  law,  and  by  this  it  is  to  be  measured 
—  so  measured  in  cases  of  salvage  —  it  included  the  ship's 
apparel,  tackle,  money,  freight,  cargo  ;  and  here  it  stopped, 
for  the  necessities  of  commerce  did  not  require  that  any- 
thing else  should  be  clothed  with,  so  to  speak,  capacity  to 
subject  itself  to  pecuniary  responsibility  ;  the  salvage  allowed 
derelict  and  "  found  "  property,  being  allowed  from  a  diff'er- 
ent  reason,  namely,  as  an  incentive  to  save  property  aban- 
doned to  destruction  from  the  elements  upon  the  broad  ocean. 


20  ADMIRALTY  LAW. 

I  think  the  commissions  of  the  colonial  admiralty  judges, 
the  history  of  our  admiralty  jurisprudence,  and  an  application 
of  principles  to  facts,  all  lead  to  the  recognition  of  this  test  as 
being  the  true  one.  Judged  by  it,  the  object  here  libelled, 
the  dry  dock,  is  not  the  subject  of  admiralty  or  maritime 
jurisdiction  for  salvage. 

The  manner  of  arriving  at  a  solution  of  the  question  before 
the  courts  renders  it  unnecessary  to  comment  upon  the  cases 
which  have  been  cited,  further  than  to  say  that  in  all  the 
cases  decided  by  courts  of  the  United  States,  where  salvage 
has  been  allowed,  the  property  salved  was  either  the  ship,  her 
cargo  and  freight,  or  derelict,  or  property  found  upon  the 
navigable  waters,  and  in  all  the  cases  where  it  has  been  dis- 
allowed the  property  salved  was  neither.  I  except  the  case 
of  Four  Cribs  of  Lumber,  Taney,  633,  where  the  usages  of 
the  lumber  business  seem  to  have  controlled  the  court. 

The  plea  to  the  jurisdiction  is  maintained,  and  the  libel 
dismissed. 

See  The  Hendrik  Hudson,  3  Ben.  419;  The  Salvor 
Wrecking  Co.  v.  Sectional  Dry  Dock  Co.,  Judge  Dillon 
(unreported)  ;  Thackarey  v.  The  Farmer,  Gilpin,  524  ;  The 
Belfast,  7  Wall.  637  ;  1  Conkling's  Adm.  p.  8  ;  Fifty  Thou- 
sand Feet  of  Lumber,  2  Lowell,  64  ;  A  Raft  of  Logs,  1  Abb. 
Adm.  485 ;  Twenty-three  Bales  of  Cotton,  7  Ben.  48  ;  Four 
Cribs  of  Lumber,  Taney,  533. 

Since  I  prepared  the  above,  the  foregoing  decision 
has  been  reported  by  my  esteemed  friend,  Joseph  P. 
Hornor,  Esq.,  of  the  New  Orleans  Bar,  in  the  Federal 
Reporter,  vol.  x.  No.  1,  Feb.  21,  1882,  p.  142.  With 
this  number  of  one  of  the  best  law  periodicals,  namely, 
the  Federal  Reporter,  begin  the  valuable  services  of 
Robert  Desty,  Esq.,  as  editor.  He  is  a  justly  popular 
author  of  admirable  law-books. 

Cope  et  al.  prayed  the  United  States  Supreme  Court 
for  a  writ  of  mandamus  to  the  District  Court  to  order 
that  court  to  take  jurisdiction  and  proceed  with  the 
cause. 


JURISDICTION.  21 

About  the  10th  of  April,  1882,  the  Supreme  Court 
refused  the  mandamus. 

Subsequently  Cope  et  al  libelled  the  Vallette  Dry 
Dock  Company  e«  personam  for  the  same  cause  of  action 
as  in  their  libel  in  rem.  , 

I  again  pleaded  to  the  jurisdiction  on  the  ground 
that  the  dry  dock  is  not  a  subject  of  admiralty  or  mar- 
itime jurisdiction  for  salvage. 

After  argument,  the  District  Court  sustained  my 
plea  to  the  jurisdiction  in  the  suit  in  personam. 

Libellants  took  an  appeal  to  the  Circuit  Court, 
returnable  to  the  November  term,  1882.  Said  appeal 
is  still  pending  at  the  time  of  this  writing. 

The  dry  dock  of  libellant  floating  in  the  Delaware, 
moored  to  a  wharf,  having  been  injured  by  the  negli- 
gence of  respondent's  tug,  held,  that  the  jurisdiction 
of  the  court  of  admiralty  attached.^ 

Admiralty  has  no  jurisdiction  of  a  claim  for  injury 
by  a  schooner  to  a  derrick  on  a  pier,  the  damage  not 
being  done  upon  the  water.^ 

Where,  although  the  origin  of  the  wrong  is  on  the 
water,  the  consummation  and  substance  of  the  injury 
are  on  the  land,  the  admiralty  has  no  jurisdiction.^ 

The  District  Court  can  adjudicate  upon  matters  of 
salvage  as  well  in  a  proceeding  in  personam  as  in  rem^ 

A  maritime  lien  may  be  enforced  in  a  court  of  ad- 
miralty by  a  proceeding  in  personam  against  the  party 
who  holds  the  property  or  proceeds,  if  they  have  passed 
into  the  hands  of  third  persons.* 

1  The  Ceres,    10    Central   Law         ♦  The  Centurion,  1  Ware,  477. 
Jour.  113.  '  Sheppard    v.    Taylor,    5    Pet. 

«  The  Schooner  Maud  Webster,    675;  Cutler  p.  Rae,  7  How.  729. 
8  Ben.  .547. 

*  Ibid.  p.  552,  and  cases  there 
cited. 


22  ADMIRALTY  LAW. 

Courts  of  admiralty  have  always  been  in  the  habit 
of  entertaining  suits  between  foreigners  in  cases  of 
salvage.^ 

Causes  of  collision  are  communis  juris,  and  admiralty 
has  jurisdiction  to  entertain  the  suit  between  two  for- 
eign vessels.^ 

The  question  of  jurisdiction  is  seldom  raised  or 
regarded  in  salvage  cases,  because  salvage  arises  under 
the  jus  gentium,  and  does  not  ordinarily  depend  on  the 
municipal  laws  of  particular  countries.  The  courts 
take  cognizance  of  those  cases  as  matters  of  course,  if 
either  party  and  the  property  are  territorially  within 
their  jurisdiction,  although  the  salvors  and  claimants 
are  aliens.^ 

AdmiraUy  Jurisdiction.  Suit  in  Rem.  —  In  a  suit  in  rem  in 
admiralty  against  a  vessel,  an  actual  seizure  is  necessary 
to  confer  upon  the  court  jurisdiction  over  the  vessel.* 

A  suit  on  a  bottomry  bond,  except  in  certain  cases, 
must  be  by  proceedings  in  rem  against  the  property 
hypothecated  or  the  proceeds,  as  prescribed  by  admi- 
ralty rule  18,  and  a  libel  in  rem  may  be  a  proceeding 
against  the  property  by  arrest  or  attachment;  but  it 
does  not  follow  that  an  attachment  can  only  be  made 
by  actually  taking  possession  of  the  property ;  service 
may  be  made  either  by  notice  or  by  actual  levy  on  the 
goods.     Service  by  notice  and  monition  is  analogous  to 


1  Mason    v.    The     Blaireau,    2  W.  Rob.  35;  The  Luna  w.  The  Bel- 

Cranch,    240;    The    Bee,   1   Ware,  genland.  The  Reporter  (Boston),  voL 

332;  One  Hundred  and  Ninety-four  xiii.  No.  1,  p.  6  (1882). 

Shawls,  1  Abb.  Adm.  317  ;  The  Sail-  '  One  Hundred  and  Ninety-four 

or's  Bride,  1  Brown,  681 ;  The  Mag-  Shawls,  1  Abb.  Adrn.  317;  The  Bee, 

gie  Hammond,  9  Wall.  435.  1  Ware,  332. 

^    Abbott's    Law    of    Merchant  *  Brennan  v.   The   Steam    Tug 

Ships  and  Seamen,  579  (12th  edi-  Anna  P.   Dorr,   4   Fed.   Rep.  459 

tion,  London,  1881,  by  S.  Prentice,  (1880). 
Q.  C);  The  Johann  v.  Friederich,  1 


JURISDICTION.  23 

the  process  of  garnishment,  and  a  good  attachment  of 
the  proceeds  in  whatever  form  they  may  exist.* 

In  Miller  v.  United  States,  11  Wall.  294,  it  is  said: 
"  In  revenue  and  admiralty  cases  a  seizure  is  undoubt- 
edly necessary  to  confer  upon  the  court  jurisdiction 
over  the  thing  when  the  proceeding  is  in  rem.  In 
most  of  such  cases  the  res  is  movable  personal  property, 
capable  of  actual  manucaption.  Unless  taken  into 
actual  possession  by  an  officer  of  the  court,  it  might  be 
eloigned  before  a  decree  of  condemnation  could  be 
made,  and  thus  the  decree  would  be  ineffectual.  It 
might  come  into  the  possession  of  another  court,  and 
thus  there  might  arise  a  conflict  of  jurisdiction  and  de- 
cision, if  actual  seizure  and  retention  of  possession  were 
not  necessary  to  confer  jurisdiction  over  the  subject" 

Section  IV.— PLEA  TO  THE  JURISDICTION. 

If  a  fact  which  affects  the  jurisdiction  of  a  court  does 
not  appear  on  the  face  of  the  libel,  it  should  be  spe- 
cially stated  either  in  a  plea  or  answer.^ 

When  a  plea  to  the  jurisdiction  of  the  court  is  over- 
ruled, the  question  whether  the  respondent  shall  be 
permitted  to  answer  the  allegations  of  the  libel  is  one 
of  discretion  with  the  court.* 

The  question  of  jurisdiction  is  open  at  any  stage  of 
the  proceedings  until  final  hearing.* 

Where  the  court  has  no  jurisdiction  over  the  case, 
advantage  may  be  taken  of  this  defect  at  any  stage  of 
the  proceedings,  if  the  libel  does  not  aver  the  facts 
necessary  to  give  jurisdiction.* 

*  Snow  V.  Tons  of  Scrap  Iron,  *  Ward  r.  Thompson,  Newb.  195; 
11  Fed.  Rep.  517.  s.  c.  22  How.  330;  Peyrouxr.  IIow- 

«  Knight  V.  The  Attila,  Crabbe,    ard,  7  Pet  324. 
826.  »  The    Washington,  4  Blatchf. 

*  The  Sea  GuU,  Chase,  115.  101. 


24  ADMIRALTY  LAW. 

A  plea  to  the  merits  is  an  admission  that  the  juris- 
diction of  the  court  is  well  founded,  and  a  decree  on 
the  merits  cannot  afterwards  be  arrested  unless  the 
defect  of  jurisdiction  is  apparent  on  the  face  of  the 
record.^ 

If  the  libel  avers  that  the  seizure  was  made  on  a 
navigable  water,  and  the  claimant  desires  to  raise  the 
question  of  jurisdiction,  he  must  traverse  the  allegation 
of  the  place  of  seizure  by  a  plea.^ 

A  State  court  may  entertain  an  action  by  a  salvor 
to  recover  compensation  for  salvage  services,  where 
there  has  been  an  express  promise  to  pay  for  them.^ 

A  State  court  may  entertain  a  bill  in  equity  to  re- 
deem goods  from  a  lien  claimed  on  account  of  an  al- 
leged salvage  service.* 

The  question  as  to  the  true  limits  of  admiralty  juris- 
diction is  exclusively  a  judicial  question,  and  no  State 
law  or  act  of  Congress  can  make  it  broader  than  the 
judicial  power  may  determine  those  limits  to  be.^ 

Section  V.  — CIRCUIT  COURTS. 

The  act  of  March  3,  1875,  eh.  137,  §  1  (18  Stat. 
470),  provides  that  the  Circuit  Courts  shall  also  have 
appellate  jurisdiction  from  the  District  Courts  under 
the  regulations  and  restrictions  prescribed  by  law. 

Section  631  of  the  United  States  Revised  Statutes 
provides  that  the  Circuit  Court  shall  have  jurisdiction 
from  all  final  decrees  of  a  District  Court  in  causes  of 
equity  or  of  admiralty  and  maritime  jurisdiction,  ex- 

1  The  Abby,  1  Mas.  360.  ■*  Cashmere  v.  Be  Wolf,  2  Sandf. 

3  United  States  v.  Two  Hundred  379. 
and  Fifty  Barrels,  Chase,  502.  «  The  Lottawanna,  21  Wall.  558; 

*  Albany  City  Insurance  Co.  v.  The  St.  Lawrence,  1  Black,  522. 
Whitney,  70  Pa.  St.  248. 


JURISDICTION.  25 

cept  prize  causes,  where  the  matter  in  dispute  exceeds 
the  sum  or  value  of  fifty  dollars,  exclusive  of  costs,  an 
appeal  shall  he  allowed  to  the  Circuit  Court  next  to  be 
held  in  such  district,  and  such  Circuit  Court  is  required 
to  receive,  hear,  and  determine  such  appeal. 

Objections  to  the  jurisdiction  of  the  Circuit  Court, 
when  they  go  to  the  subject-matter  of  the  controversy 
and  not  to  the  form  merely  of  its  presentation,  or  to 
the  character  of  the  relief  prayed,  may  be  taken  at  any 
time.  They  are  not  waived  because  they  are  not 
taken  in  the  Circuit  Court.^ 

Section  VI.— SUPREME  COURT. 

The  agreement  of  the  parties  cannot  authorize  the 
Supreme  Court  to  revise  a  judgment  in  any  other 
mode  of  proceeding  than  that  which  the  law  prescribes, 
for  it  cannot  give  jurisdiction  to  the  Supreme  Court. 
Its  appellate  power  is  regulated  and  limited  by  law.'^ 

The  Supreme  Court  has  jurisdiction  of  an  appeal  in 
admiralty,  although  the  Circuit  Court  affirmed  the 
decree  of  the  District  Court  jpro  fomm  because  the 
judge  had  been  counsel  for  one  of  the  parties.^ 

By  sections  690  and  691  of  the  Revised  Statutes  of 
the  United  States  (as  amended  by  the  act  of  Feb.  16, 
1875,  ch.  77,  §  33,  18  Stat.  316),  it  is  provided  that  the 
Supreme  Court  shall  have  appellate  jurisdiction  of  all 
final  judgments  of  any  Circuit  Court  removed  there  by 
appeal,  where  the  matter  in  dispute,  exclusive  of  costs, 
exceeds  the  sum  or  value  of  five  thousand  dollars. 

A  judgment  against  a  defendant  is  prima  facie  the 


1  Boom   Company  v.  Patterson,    Nonesuch,  9  Wall.  505;  The  Alicia, 
98  U.  S.  403.  7  Wall.  572. 

«  The  Lucy,  8  Wall.  307;  The         •  Oregon  v.  Rocca,  18  How.  570. 


26  ADMIRALTY  LAW. 

measure  of  the  jurisdiction  in  his  behalf,  and  this  prima 
facie  case  continues  until  the  contrary  is  shown.^ 

By  "  matter  in  dispute  "  is  meant  the  subject  of  litiga- 
tion, the  matter  for  which  the  suit  is  brought,  and  upon 
which  issue  is  joined,  and  in  relation  to  which  jurors 
are  called  and  witnesses  examined.^ 

For  further  on  jurisdiction,  see  "Appeals,"  "Inter- 
est," "  Costs." 

Section  VIL  — SOURCES  OF  ADMIRALTY  LAW. 

See  Erskine's  Institutes  (7th  ed.),  p.  33,  book  1, 
tit.  3,  §  18. 

The  decision  of  the  court  of  admiralty  is  based  on 
the  law  of  nations.^ 

The  peculiar  law  which  admiralty  courts  administer 
is,  first,  the  maritime  law  of  the  world,  —  that  law 
which  in  the  sense  of  the  Roman  law  is  jus  gentium. 
The  Romans  did  not  mean  by  jus  gentium  what  we  call 
the  law  of  nations,  —  that  is,  law  which  regulates  the 
rights  and  duties  of  nations  in  respect  to  each  other ; 
but  they  meant  those  laws  found  in  all  nations,  and 
substantially  the  same  in  all.* 

Another  source  of  admiralty  law  is  the  decisions  of 
the  courts  of  admiralty  and  common  law,  on  maritime 
questions,  and,  in  the  United  States,  the  acts  of  Con- 
gress.^ 

Section    VIII.  —  PRINCIPAL  SUBJECTS   OF  ADMIRALTY 
JURISDICTION. 

The  principal  subjects  of  admiralty  jurisdiction  are 
maritime  contracts  and  maritime  torts,  including  cap- 

1  Troy  V.  Evans,  97  U.  S.  1.  <  Curtis's  Lectures,  277  (Boston, 

2  Lee  V.  Watson,  1  Wall.  337.         1880). 

8  Wheaton,  Law  of  Nations,  211.         «  Ibid.  278,  279. 


JURISDICTION.  27 

tures  jure  helU,  and  seizures  on  water  for  municipal  and 
revenue  forfeitures. 

1.  Contracts,  claims,  or  services  purely  maritime,  and 
touching  rights  and  duties  appertaining  to  commerce 
and  navigation,  are  cognizable  in  the  admiralty.^ 

2.  Torts  or  injuries  committed  on  navigable  waters, 
of  a  civil  nature,  are  also  cognizable  in  the  admiralty 
courts. 

Jurisdiction  in  the  former  case  depends  upon  the 
nature  of  the  contract,  but  in  the  latter  it  depends 
entirely  upon  locality.  Mistakes  need  not  be  made  if 
these  rules  are  observed ;  but  contracts  to  be  performed 
on  waters  not  navigable  are  not  maritime,  any  more 
than  those  made  to  be  performed  on  land.  Nor  are 
torts  cognizable  in  the  admiralty,  unless  committed  on 
waters  within  the  admiralty  and  maritime  jurisdiction, 
as  defined  by  law.^ 

Section    IX. —SPECIAL    SUBJECTS  OF  ADMIRALTY 
JURISDICTION. 

The  admiralty  has  exclusive  jurisdiction  as  to  mari- 
ners' wages,  where  they  proceed  in  rem} 

A  contract  to  carry  merchandise  on  the  navigable 
waters  of  the  United  States  is  within  the  admiralty 
jurisdiction.* 

A  bill  of  lading  is  within  the  admiralty  jurisdiction.^ 

This  principle  applies  to  passengers.® 

1  Conkling'8  Adm.  19;  The  Bel-  Co.   r.   The    Merchants'    Bank,   6 

fast,  7  Wall.  637.  IIow.  344;  Morewood  v.   Enequist, 

»  The  Commerce,  1  Black,  579;  23  How.  491;  The  Belfast,  7  Wall. 

2  Story  on  the  Constitution  (3d ed.),  624;  but  not  within   ports  of  the 

§§  1666-1669  ;    The    Belfast,     vbi  same   State,   Maguire   v.    Card,  21 

supra.  How.  248. 

'   Leon  V.   Galceran,   11  Wall.         '  The  Gold  Hunter,  Blatchf.  & 

185.  Howl.  300. 

*  The    New   Jersey    Steamboat         •  The  Moses  Taylor,  4  Wall.  411. 


28  ADMIRALTY  LAW. 

Over  pilots  and  pilotage,  admiralty  has  jurisdic- 
tion.^ 

Claims  for  pilotage  fees  are  within  the  jurisdiction 
of  the  admiralty.^ 

Those  who  furnish  repairs  and  materials  to  vessels  in 
a  foreign  port  have  a  lien  on  a  vessel  enforceable  in 
admiralty.^ 

But  liens  depending  upon  State  laws,  and  not  aris- 
ing out  of  the  maritime  contract,  are  left  to  be  enforced 
by  the  State  courts.* 

Cases  of  domestic  ships  for  supplies,  repairs,  or  other 
necessaries  proceed  in  personam,  but  not  in  rem,  (See 
Admiralty  Rule  12 ;  21  How.  iv.) 

Admiralty  has  jurisdiction  over  bottomry  and  respon- 
dentia bonds.^ 

If  a  bond  is  oppressive  from  exorbitant  interest,  &c., 
or  bad  in  itself,  the  court  of  admiralty  can  give  pro- 
tection and  relief  from  it.^ 

Policies  of  insurance  are  within  the  admiralty  juris- 
diction.'^ 

An  insurer  may  libel  for  premium.^ 

Admiralty  has  jurisdiction  over  jettison  and  general 
average  contributions.^ 

In  a  case  of  general  average,  where  the  consignee 
has  received  his  goods  and  given  a  general-average 
bond,' the  United  States  Admiralty  Court,  under  later 
decisions  of  the  United  States  Supreme  Court,  has  ju- 

1  Hobart  v.  Drogan,  10  Pet.  108.         «  Handbook  of  Average,  byMan- 

3  Ex  parte  Hagar,  U.  S.  Supreme  ley  Hopkins,  p.  90,  3d  ed. 

Court,  November,   1881;  The   Re-         ">  Insurance  Co.  v.   Dunham,  11 

porter,    vol.   xiii.    No.    14,   p.   419  Wall.  1. 

(Boston,  1882).  s  The  Dolphin,  1  Flippen,  580. 

»  The  Belfast,  7  Wall.  624.  »  Insurance  Co.  v.   Dunham,  uU 

*  Maguire  v.  Card,  21  How.  251.  supra ;  Dupont  de  Nemours  &  Co. 

6  Curtis's    Lectures,    261;    The  v.  Vance  et  al.,  19  How.  162. 

Brig  Draco,  2  Sumn.  157. 


JURISDICTION.  29 

risdiction  of  an  action  on  such  bond,  notwithstanding 
the  opinion  in  Cutler  v.  Rae,  7  How.  729.^ 

Salvage  services  are  of  admiralty  cognizance.  (See 
my  chapter,  title  Salvage.) 

The  contract  of  ransom  is  also  within  admiralty 
jurisdiction. 

Admiralty  has  jurisdiction  of  surveys ;  as,  where  a 
regular  survey  is  required  by  the  terms  of  a  policy  of 
insurance,  or  where  freighters  and  seamen  claim  dis- 
charge of  contract  because  the  vessel  is  unseaworthy.^ 

Admiralty  has  jurisdiction  over  petitory  and  posses- 
sory actions.* 

Surrender  of  interest  in  the  vessel  and  freight,  as  pro- 
vided by  sections  4283  et  seq.  of  the  United  States  Re- 
vised Stxitutes,  may  be  received  by  the  admiralty  courts, 
and  they  may  appoint  trustees  and  distribute  the  fund.^ 

Torts  on  the  high  seas  or  navigable  waters  of  the 
United  States  are  within  the  admiralty  jurisdiction,  as  I 
have  herein  above  stated,  citing  The  Belfast,  7  Wall.  624. 

Under  the  head  of  Torts  are  included  personal  as- 
saults and  batteries,  collision,  and  spoliations  by  force;® 
and  cases  where  war-vessels  have  increased  their  force 
here  contrary  to  our  rights  and  duties  as  neutrals.' 

1  Bark  San  Fernando  v.  Jackson  *  Ward  v.  Peck,  18  How.  267; 

6  Manson,  12  Fed.  Rep.  341,  by  The  Steamboat  Orleans  v.  Phoebus, 
Pardee,  Ct.  J.,  March  18,  1882  11  Pet.  175,  where  Phoebus,  part 
(reportedby  Joseph  P.  Homor,  Esq.,  owner,  sued  the  other  part  owners 
of  the  New  Orleans  Bar) ;  citing  for  a  sale,  which  the  court  refused, 
Dike  V.  St.  Joseph,  6  McLean,  and  held  that  the  majority  may  em- 
573;  Insurance  Co.  v.  Dunham,  11  ploy  the  vessel,  giving  stipulation 
Wall.  1;  Gloucester  Insurance  Co.  for  her  safe  return ;  if  the  majority 
V.  Younger,  2  Curt.  334.  decline,  the  minority  may  do  so,  on 

^  Masonaire  v.  Keating,  2  Gall,  like  terms. 
336.  6  The  Norwich  Co.   v.  Wright, 

•  Dorr  V.  Pacific  Insurance  Co.,  13  Wall.  104. 

7  Wheat.  581 ;  Janney  v.  Columbian         «  Curtis's  Lectures,  268,  269. 
Insurance  Co.,  10  ^\'heat.  412 ;  U.  S.         '  Ibid.  270. 

Rev.  Stat.  4556  et  seq. 


30  ADMIRALTY  LAW. 

The  United  States  District  Courts  have  also  juris- 
diction of  revenue  seizures.^ 

Informations  filed  by  the  district  attorney  to  enforce 
forfeitures  are  within  the  jurisdiction  of  the  admiralty.^ 

The  District  Court  has  also  the  entire  prize  jurisdic- 
tion.^ 

In  Jennings  v,  Carson,  4  Cranch,  2,  Marshall,  Ch.  J., 
delivering  the  opinion  of  the  court,  said  the  court  is 
not  of  opinion  that  the  Prize  Acts  of  Great  Britain  con- 
fer entirely  new  powers  on  the  courts  whose  practice 
they  regulate. 

In  Brown's  Civil  and  Admiralty  Law,  in  his  chapter 
on  the  jurisdiction  of  the  prize  courts,  it  is  expressly 
stated  that  those  courts  exercised  their  jurisdiction 
anterior  to  the  Prize  Acts ;  and  the  same  opinion  is 
expressed  by  Lord  Mansfield  in  the  case  of  Lmdo  v. 
Brown,  Douglas,  613,  n. 

By  section  563  of  the  United  States  Revised  Statutes 
the  District  Courts  have  jurisdiction  of  all  crimes  and 
offences  cognizable  under  the  authority  of  the  United 
States,  committed  within  their  respective  districts,  or 
upon  the  high  seas,  the  punishment  of  which  is  not  cap- 
ital, except  in  the  cases  mentioned  in  section  5412, 
title  Crimes.     §§  4300-4305. 

By  section  629  of  the  United  States  Revised  Statutes, 
nineteenth  paragraph,  the  Circuit  Court  of  the  United 
States  has  jurisdiction  of  all  suits  and  proceedings  aris- 
ing under  section  5344,  title  Crimes,  for  the  punish- 
ment of  officers  and  owners  of  vessels,  through  whose 
negligence  or  misconduct  the  life  of  any  person  is  de- 
stroyed. 

1  Whelan  v.  The  United  States,  geance,  3  DaU.  297;  The  Sally,  2 
7  Cranch, 112.  Cranch,  406. 

a  The  United  States  v.  La  Ven-        «  Curtis's  Lectures,  272. 


JURISDICTION.  31 

By  the  twentieth  paragraph  of  the  same  section  the 
Circuit  Court  has  exclusive  cognizance  of  all  crimes  and 
offences  cognizable  under  the  authority  of  the  United 
States,  except  where  it  is  or  may  be  otherwise  provided 
by  law,  and  concurrent  jurisdiction  with  the  District 
Courts  of  crimes  and  offences  cognizable  therein.  (See 
U.  S.  Rev.  Stat  §§  730,  731.) 

That  learned  and  able  writer,  E.  C.  Benedict,  LL.D., 
in  his  admirable  work  on  the  American  admiralty 
(1870),  in  section  570,  says,  the  grant  in  the  Constitu- 
tion of  judicial  power  to  the  government  of  the  United 
States  in  all  cases  of  admiralty  and  maritime  jurisdic- 
tion is  without  limitation,  and  of  course  embraces 
criminal  as  well  as  civil  cases. 

Courts  of  admiralty  have  no  jurisdiction  over  national 
vessels  of  war  commissioned  by  the  government  of  a 
foreign  State.^     [But  see  page  29,  last  paragraph.] 

A  libel  in  personam  for  damages  received  by  a  person 
who  had  gone  on  board  a  vessel  moored  at  a  wharf,  for 
the  purpose  of  ascertaining  whether  he  had  a  consign- 
ment by  such  vessel,  it  being  customary  with  the 
officers  to  allow  parties  to  come  on  board  for  such 
purposes,  and  who  had  been  injured  by  a  bale  of  cot- 
ton being  negligently  allowed  to  fall  on  him,  is  a  mari- 
time tort,  and  cognizable  in  the  admiralty.^ 

The  court  of  admiralty  has  jurisdiction  in  cases  of 
personal  injuries  on  the  voyage,  and  in  cases  of  injuries 
by  collision  of  vessels.* 

And  it  is  the  only  tribunal  sitting  in  countries  under 

*  The  Constitution,  The  Law  vol.  iv.  No.  3,  p.  777,  October 
Reports,  Probate  Division,  vol.    iv.    Terra,  1S81. 

p.  39  (1879).  •  2  Wait's  Actions  and  Defences, 

*  Leathers  v.  Blessing,  Morrison,  98;  The  Thames,  5  Rob.  Adm.  348; 
Transcript  of  the  Decisions  of  the  Waring  v.  Clarke,  5  How.  441. 
Supreme  Court  of  the  United  States, 


32  ADMIRALTY  LAW. 

the  dominion  of  the  common  law  which  can  ordinarily 
administer  a  remedy  in  rem,  and  hold  the  offending 
vessel  itself  liable  for  the  payment  of  the  damages.^ 

Admiralty  has  jurisdiction  of  an  action  in  rem  to 
recover  damages  for  death  of  a  passenger  caused  by 
fault  or  neglect  of  master  and  mariners.^ 

So,  of  a  libel  for  damages  for  death  of  chief  mate  of 
a  vessel,  caused  by  a  collision.^ 

A  parent  may  maintain  a  libel  in  admiralty  for  the 
wrongful  abduction  and  carrying  to  sea  of  a  son.* 

A  ship-owner  is  liable  for  such  tort  of  the  master, 
where  the  master  is  in  command  of  the  vessel  as  the 
agent  of  the  owner.^ 

See  Notes  of  Constitutional  Decisions,  by  Orlando  F. 
Bump,  New  York,  1878,  pp.  268-272. 

Admiralty  courts  have  jurisdiction  in  a  cause  of 
possession,  to  take  a  ship  from  a  wrong-doer,  and 
deliver  her  over  to  a  person  claiming  as  the  right 
owner.^ 

For  jurisdiction  as  to  wharfage,  see  Brock  v.  The  John 
M.  Walsh,  24  Int.  Rev.  Rec.  207;  The  J.  H.  Stearin, 
15  Blatchf  473. 

Claims  for  wharfage  arising  out  of  either  an  express 
or  an  implied  contract  are  cognizable  in  admiralty.' 

The  admiralty  has  jurisdiction  of  a  contract  made 
between  the  master  of  a  ship  and  a  cooper,  to  put  the 

1  2  Wait's  Actions  and  Defences,  ^  Coggins  v.  Helmsley,  23  Int. 
98;  The  Moses  Taylor,  4  Wall.  411 ;    Rev.  Rec.  381. 

The   Hine  v.  Trevor,  4  Wall.  555.         *  Tillmore  v.  More,  4  Fed.  Rep. 

See  Baird  v.   Daly,   57  N.  Y.   (12  231. 
Sick.)  236 ;  The  General  Buel,  18         ^  ibid. 

Ohio  St.  521 ;  Ex  parte  Gordon,  14  «  /„  j.^  Blanchaid,  2  B.  &  C. 
U.  S.  515  (November,  1881);  The  244;  3  D.  &  R.  177;  8  Jacob's  Fish- 
Reporter,  vol.  xiii.  No.  14,  p.  417  er's  Digest,  p.  12,708;  Thurber  r. 
(Boston,  1882).  The  Fannie,  8  Ben.  429. 

2  See  Rusk  v.  The  Charles  Mor-  '  Ex  parte  Easton,  95  U.  S.  R. 
gan,  18  Am.  L.  Reg.  624.  S.  C.  (5  Otto)  68. 


JtJRISDICTION.  33 

cargo  of  the  ship  in  landing  order,  the  services  being 
rendered  partly  on  the  ship  and  partly  on  the  wharf, 
but  before  the  delivery  of  the  cargo.^ 

In  a  proceeding  in  rem,  a  valid  seizure  and  actual 
control  of  the  res  by  the  marshal  gives  jurisdiction  ;  and 
an  improper  removal  of  it  from  his  custody,  as  by  an 
order  of  court  improvidently  made,  does  not  destroy 
the  jurisdiction.^ 

There  is  nothing  in  the  nature  of  the  admiralty 
jurisdiction,  or  of  an  appeal  in  admiralty,  which  pre- 
vents parties  in  the  court  of  admiralty,  whether  sit- 
ting in  prize  or  as  an  instance  court,  from  submitting 
their  case  by  rule  of  the  court  to  arbitration.^ 

Courts  of  admiralty  have  jurisdiction  over  torts  of 
passengers  upon  the  high  seas.* 

Courts  of  admiralty  have  jurisdiction  over  contracts 
for  the  carriage  of  passengers  by  sea,^  and  upon  other 
navigable  waters.^ 

Admiralty  jurisdiction  has  no  regard  to  registry  or 
enrolment  and  license.^ 

Federal  courts  have  jurisdiction  to  try  for  murder 
committed  "  upon  the  high  seas,  or  in  any  river,  haven, 
basin,  or  bay,  out  of  the  jurisdiction  of  any  particular 
State." 

But  they  have  no  jurisdiction  to  try  for  murder  com- 
mitted on  board  a  vessel  of  the  United  States  in  Boston 
harbor.' 

1  The  Bark  Onore,  6  Benedict,  sengers,  467;  The  Moses  Taylor,  4 

564.  Wall.  411. 

«  The    Rio    Grande,    23    Wall.  •  Thompson's  Carriers  of  Passen- 

458.  gers,  543,  544. 

»  United  States  v.  Farragut,  22  '  The   General  Cass,  Dist.   Ct. 

Wall.  406.  U.  S.  Eastern  District  of  Michigan, 

*  Thompson's  Carriers  of  Pas-  The  American  Law  Times  Reports, 
sengers,  459;  Chamberlain  t;.  Chand-  vol.  v.  p.  12,  January.  1872. 

ler,  3  Mason,  242.  »  United  States  v.  Bevans,  3  Wh. 

•  Thompson's  Carriers  of    Pas-    338 ;  United  States  r.  Pirates,  5Wh. 


34  ADMIRALTY  LAW. 

The  common  law  liability  of  a  carrier  for  loss  or 
delay  of  goods  intrusted  to  him  for  transportation  by 
sea  may,  under  the  Constitution  of  the  United  States, 
be  enforced  by  appropriate  proceedings  in  admiralty.^ 

For  a  "  History  of  Admiralty  Jurisdiction  in  the  Su- 
preme Court  of  the  United  States,"  see  the  American 
Law  Review,  vol.  v.  No.  4,  pp.  581-621,  Boston,  July, 
1871. 

The  above-named  article  is  said  to  be  by  R.  H.  Dana, 
Jr.,  author  of  "Two  Years  before  the  Mast"  and  of 
"  The  Seaman's  Friend,"  of  which  last  work  the  thir- 
teenth edition  is  now  before  me. 

Further  as  to  admiralty  maritime  jurisdiction,  see 
Desty's  Federal  Constitution,  1879,  pp.  221-223 ;  and 
Ettinge  on  iVdmiralty  Jurisdiction,  Philadelphia,  1879  ; 
also  see  American  Inter-State  Law,  pp.  301,  302,  305, 
306,  by  David  Rorer,  of  the  Iowa  Bar,  edited  by  Levy 
Mayer,  of  the  Chicago  Bar.  Chicago :  Callaghan  & 
Co.,  1879. 

Finally,  as  to  jurisdiction  in  admiralty,  we  may  re- 
mark that  it  has  been  progressive,  and  kept  pace  with 
the  march  of  science,  art,  commerce,  and  civiHzation. 

Azuni,  a  celebrated  writer  on  the  maritime  law  of 
Europe,  a  century  ago,  says  it  would  be  reasonable  "  to 
determine  definitively  that  the  jurisdiction  of  the  terri- 
torial sea  shall  extend  no  farther  than  three  miles  from 
the  land,  which  is,  without  dispute,  the  greatest  dis- 
tance to  which  the  force  of  gunpowder  can  carry  a  ball 
or  bomb."     See  1  Azuni,  pt.  1,  ch.  11,  No.  15,  p.  205. 

181;  United  States  v.  Wiltberger,  5         ^  Wait's  Actions  and  Defences, 

Wh.  76.    And  see  Federal  Practice,  97;  New  Jersey  Steam  Navigation 

byField&Miller,  239;  and,  for  juris-  Co.   v.  Merchants'  Bank,   6   How. 

diction  of  District  Courts  in  admi-  378;  Rich  ».  Lambert,  12  How.  347; 

ralty  generally,  see  the  same  work.  King  v.  Shepherd,  3  Story,  349. 
p.  50  et  seq.    And  see  also  Rorer  on 
Inter-State  Law,  301. 


JURISDICTION.  85 

Now  we  know  that  at  the  present  day  the  "  dis- 
tance" largely  exceeds  "  three  miles." 

See  also,  as  to  '^  malleability  to  suit  the  necessities 
and  usages  of  the  mercantile  and  commercial  world," 
Mercer  County  v.  Hacket,  1  Wall.  95. 


36  ADMIRALTY  LAW. 


CHAPTER  n. 

SALVAGE. 

Section  I,  —  INGREDIENTS  OF  SALVAGE. 

Nature  of  the  service,  and  in  what  cases  salvage 
remuneration  is  payable,  form  the  subjects  of  this  sec- 
tion. 

Justice  Bradley  (of  the  Supreme  Court  of  the  United 
States),  acting  as  Circuit  Justice,  defined  salvage  as  fol- 
lows :  "  Salvage  is  a  reward  for  meritorious  services 
in  saving  property  in  peril  on  navigable  waters,  which 
might  otherwise  be  destroyed,  and  is  allowed  as  an 
encouragement  to  persons  engaged  in  business  on  such 
waters,  and  others,  to  bestow  their  utmost  endeavors 
to  save  vessels  and  cargoes  in  peril."  ^ 

In  Arnould  on  the  Law  of  Marine  Insurance  it  is 
said  :  "  In  cases  of  abandonment  the  assured  is  entitled 
to  the  whole  amount  of  the  insurance,  and  the  under- 
writer, on  payment  of  such  amount,  is  entitled  to  the 
net  proceeds  of  whatever  may  be  saved ;  in  other 
words,  to  the  salvage,  after  deducting  the  expenses  of 
saving  and  receiving  it."  ^ 

It  is  not  in  this  last  sense,  but  in  the  former,  as 
defined  by  Justice  Bradley,  that  the  word  "  salvage  "  is 
employed  by  me  in  this  book.  See  also  a  definition 
in  Hennessy  v.  The  Versailles,  1  Curtis  C.  C.  355. 

.      1  Sonderberg  v.  The  Tow  Boat         ^  2   Arnould,   1002  (3d  ed.,  by 
Co.,  3  Woods,  143.  David  Maclachlan,  London,  1866). 


SALVAGE.  37 

Salvasce  is  a  service  rendered  in  the  rescue  or  relief 
of  property  at  sea,  in  imminent  peril  of  loss  or  deteri- 
oration ;  ^  of  property  on  the  sea,  or  wrecked  on  the 
coast  of  the  sea  ',^  or  on  a  public  navigable  river  or  lake, 
where  inter-state  or  foreign  commerce  is  carried  on.* 

The  service  must  be  voluntary,  and  not  a  service 
owed  to  the  property  or  to  its  owner.* 

The  term  "  salvage  "  is  used  to  denote  the  nature  of 
the  service,  even  when  an  absolute  compensation  is 
agreed  on.^ 

Whenever  service  has  been  rendered  in  saving  prop- 
erty on  the  sea,  the  service  is,  in  the  sense  of  the  mari- 
time law,  a  salvage  service.® 

It  may  be  laid  down  as  a  general  rule,  subject  to 
certain  exceptions  which  will  be  presently  noticed, 
that  the  plaintiffs  in  a  salvage  suit  will  be  required  to 
establish :  — 

1st,  The  fact  that  the  vessel  proceeded  against  was 
in  danger  or  distress  ; 

2d,  That  the  salvors  rendered  her  assistance  ;  and, 

3d,  That  their  efforts  were  successful. 

The  ingredients  of  a  salvage  service  are  :  — 

Mrst,  Enterprise  in  going  out  in  tempestuous  weather 
to  assist  a  vessel  in  distress,  risking  their  own  lives  to 
save  their  fellow-creatures  and  to  rescue  their  property ; 
second.  The  degree  of  danger  and  distress  from  which 


»  The  H.  B.  Foster,  Abb.  Adm.  The  Centurion,  1  Ware,  477;  Bearse 

222.  V.   Pigs  of   Copper,   1   Story,   314; 

^  The  Emulous,  1  Sumn.  210.  Adams  v.  The  Island  City,  1  Cliff. 

«  The  Circassian  v.  Two   Ferry  210;  The  Pontiac,  5  Mcl>ean,  359; 

Boats,  2  Bond,  375;  Talbot  C.Jenny,  The  M.   B.  Stetson,   1   Low.    119; 

1  Sprague,  315;  Abb.  Adm.  293.  Fritz  v.  Bull,  12   How.   406;   The 

*    The    Clarita    and    Clara,    23  A.  D.  Patchin,  1  Blatchf.  420. 
Wall.  1.  •  The  Narragansett,  Olcott,  390; 

»  The  Williams,  1  Brown  Adm,  The  Emulous,  1  Sumn.  207. 
217;  The  Emulous,  1  Sumn.  207; 


38  ADMIRALTY  LAW. 

the  property  is  released,  as  when  in  imminent  peril ; 
third,  The  degree  of  labor  and  skill  of  salvors ;  and, 
fourth,  The  value  of  the  property  saved.^ 

The  preservation  of  life,  if  it  can  be  connected  with 
the  preservation  of  property,  whether  by  accident  or 
not,  must  be  considered.^ 

Distress  of  Vessel.  —  Distress  or  peril  of  some  kind  to 
the  vessel  receiving  assistance  is  obviously  a  necessary 
ingredient  in  a  salvage  service.^ 

But  once  a  distress  or  peril,  which  elevates  the  ser- 
vice performed  to  the  dignity  of  salvage  services,  is 
shown  to  have  existed,  its  extent  is  a  matter  which, 
however  important  its  bearing  may  be  upon  the  amount 
of  remuneration,  does  not  affect  the  nature  of  the  ser- 
vice.* 

Even  though  a  vessel  has  sustained  no  real  damage, 
yet  if  she  is  in  a  position  of  reasonable  apprehension  of 
actual  danger,  assistance  rendered  to  her  under  such 
circumstances  will  be  of  the  nature  of  a  salvage  service.^ 

Risk  to  the  salvors  may  be  said  to  be  mainly  of  im- 
portance as  affecting  their  remuneration.  It  necessarily 
enhances  the  merit  of  the  services  they  render,  and 


1  The  Delphos,  Newb.  419;  The  *  The  Charlotte,  3  W.  Rob.  71; 
Clifton,  3  Hagg.  Adm.  117;  The  The  Reward,  1  W.  Rob.  174;  The 
Narragansett,  Olcott,  390.  Westminster,  1  W.  Rob.  229;  The 

2  The  Emblem,  2  Ware  (Dav.),  Wilhelmine,  1  Notes  of  Cases,  376; 
64;  The  Aid,  1  Hagg.  Adm.  83;  The  Eugenie,  3  Notes  of  Cases,  430; 
The  Two  Catherines,  2  Mason,  319;  The  Harbinger,  16  Jur.  729;  Talbot 
The  Mulhouse,  12  Law  Rep.  n.  s.  v.  Seeman,  1  Cranch,  1;  The  Ver- 
276;  Spencer  «.  The  Charles  Avery,  sailles,  1  Curt.  353;  The  Brig  Al- 
1  Bond,  119;  The  George  Nicholaus,  phonso,  1  Curt.  378;  The  Independ- 
Newb.  452;   The  Boston,  1  Sumn.  ence,  2  Curt.  350. 

328.  6  The  Aztecs,  21  L.  T.  n.  8.  797. 

»  The  Mary,  1  W.  Rob.  448;  The  See  also  The  Raikes,  1  Hagg.  246; 

Upnor,  2   Hagg.  3;   The  Persia,  1  The   Phantom,   L.  R.   1   Adm.  58; 

Spinks,  166;  The  Traveller,  3  Hagg.  The  Joseph  C.  Griggs,  1  Ben.  Adm. 

371;   The   Giacomo,  3   Hagg.  344;  80. 
The  Anastasia,  1  Beu.  Adm.  166. 


SALVAGE.  39 

entitles  them  to  a  higher  reward  than  they  would 
otherwise  receive ;  but  it  is  not  a  necessary  element  in 
salvage.^ 

To  be  in  a  condition  authorizing  a  salvage  service, 
a  vessel  must  be  subject  to  something  more  than  the 
ordinary  peril  of  the  sea.* 

To  entitle  to  salvage,  it  is  not  necessary  that  the  loss 
should  be  inevitably  certain,  nor  that  the  danger  should 
be  real  and  imminent.^ 

The  fact  that  the  peril  was  slight,  and  the  duration 
of  the  service  brief,  does  not  prevent  the  case  from 
being  one  of  salvage.* 

The  Assistance  rendered. — The  English  authorities  lay 
it  down  broadly,  that  it  is  absolutely  essential  that  the 
salvors  should  have  rendered  actual  assistance  to  the 
vessel  in  distress  ;  and  that,  however  great  may  have 
been  the  peril  to  which  the  property  was  exposed ;  if  it 
was  not  in  fact  saved  by  their  instrumentality,  no  sal- 
vage can  be  allowed,  however  benevolent  may  have 
been  their  intentions,  or  heroic  their  conduct.^ 

Some  of  the  decisions  in  United  States  courts  have 
been  governed  by  the  same  principle.  Thus,  in  the 
case  of  The  Choteau,   in   the   United   States   Circuit 

1  The  Pericles,  B.  &  L.  80,81.  Saragossa,  1  Ben.  551;  Holmes  v. 
See  also  Tlie  Boinarsuiid,  Lush.  77;  The  Joseph  C.  Griggs,  1  Ben.  81. 
The  Norden,  1  Spiiiks,  185;  The  And  see  Spencer  r.  The  Charles 
Burns  (Irish),  24  L.  T.  n.  8.  232.  Avery,  1  Bond,  121. 

2  The  Cheeseman  v.  Two  Ferry  *  Coffin  v.  The  John  Shaw,  1 
Boats,  2  Bond,  377;  The  Independ-  Cliff.  230. 

euce,  2  Curt.  352;   The   Charlotte,  «  The  Zephynis,  1  W.  Rob.  329, 

8  W.  Rob.  68;  The  Princess  Alice,  830.    See  also  The  Atla.s,  1  Lush. 

8   W.   Rt)b.    138;    The    Versailles,  518-521;  The  Ranger,  9  Jur.  119; 

1  Curt.  353 ;  The  Reward,  1  W.  Rob.  The  Edward  Hawkins,  1  Lush.  515, 
174.  516;  The  Undaunted,  1  Lush.  90-92; 

«  Talbot  ».  Seeman,  1  Cranch,  1;  The  Chetah,  :{9  L.  J.  Adra.  4;   The 

Murray  r.    The   Charming   Bet«y,  Ranger,   3    ifotes    of    Cases,    589, 

2  Cranch,  64;  The  Cornelius  Grin-  590. 
nell,  16  Law  Rep.  m.  s.  077;  The 


40  ADMIRALTY  LAW. 

Court  for  the  Fifth  Circuit  and  District  of  Louisiana, 
April  term,  1881  (not  reported),  Pardee,  Circuit  Judge, 
said  :  "  When  services  are  rendered  without  beneficial 
results,  no  salvage  can  be  allowed.  Marvin  on  Wreck 
and  Salvage,  §  103;  Schooner  Elvira,  Gilp.  67  ;  Conk- 
ling's  Adm.  280 ;  The  Whitakcr,  1  Sprague,  282 ;  The 
Dodge  Healj,  4  Wash.  C.  C.  651." 

Success. — It  may,  as  a  general  rule,  be  stated,  that 
success  is  the  main  ground  upon  which  a  claim  for  sal- 
vage must  rest.^ 

The  reward  is  for  benefit  actually  conferred  in  the 
preservation  of  property,  and  not  for  meritorious  ser- 
vices alone.^ 

An  indispensable  ingredient  of  a  salvage  claim  is, 
that  the  service  has  contributed  immediately  to  the 
rescue  or  preservation  of  the  property  in  peril.^ 

Unless  the  property  is  saved  in  fact  by  the  salvors, 
compensation  will  not  be  allowed.* 

If  the  property  is  not  benefited  by  the  exertions  of 
the  salvors,  they  can  claim  no  compensation  as  salvors  ;^ 
they  have  no  remedy  in  rem.^ 

Intentions  and  exertions  are  not  alone  sufficient.'^ 

1  The  Lockwoods,  9  Jur.  1017.  »  The  Sailor's  Bride,    1  Brown 

2  The  India,  1  W.  Rob.  406.  Adm.  69 ;  Jackson  v.  The  Magnolia, 
»  The  John   Wurts,  Olcott,  462;    20  How.  29f5;    Allen  r.  Newberry, 

The  Whitaker,l  Sprague,  282;  8.  c.  21   How.    244;  McGuire  v.    Card, 

8  Law  Rep.  n.  s.  497;  Montgomery  21  How.  248. 

V.  The  T.  P.  Leathers,  Newb.  421;         «  The  Camanche,   8  Wall.  488; 

Emersoni;.  The  Pandora,  Newb.  438;  The  Henry  Ewbauk,  1   Siunn.  400; 

The   Blackwall,    10   Wall.    1;   The  Montgomery  «.  The  T.  P.  Leathers, 

Albion   Lincoln,    1    Low.    76;  The  Newb.  421;    Clarke  v.  The  Dodge 

Santipore,  1  Spinks,  Ad.  &  E.  231;  Healy,  4  Wash.  C.  C.  651.    But  see 

The  Genessee,  12  Jur.  401;  The  At-  The  Williams,  1   Brown  Adm.  R. 

las,    1   Lush.    518;   The   E.    U.,   1  208,  per  tot. 

Spinks,   Ad.   &  E.  63;    Spencer  v.         ''  Clarke  r.   The  Dodge   Healy, 

The  Charles  Avery,  1  Bond,  119.  4  Wash.  C.  C.  651 ;  The'lndia,  1  W. 

*  Clarke   v.    The  Dodge   Healy,  Rob.   406    (but   see    The    Pontiac, 

4  Wash.  C.  C.  651;  Montgomery  v.  Newb.  130;  s.  c.    5  McLean,  359; 

The  T.  P.  Leathers,  Newb.  428.  The    Undaunted,    Lush.    90;    The 


SALVAGE.  41 

Salvage  cannot  be  allowed  upon  attempts  at  rescue 
which  have  been  unsuccessful,  though  highly  merito- 
rious.^ 

But  if  an  effort  be  made  in  good  faith,  with  means 
believed  to  be  adequate,  the  salvor  may  recover  some- 
thing in  the  nature  of  a  quantum  meruit^  although  his 
efforts  are  unsuccessful.^ 

If,  however,  a  vessel  in  distress  accepts  the  services  of 
strange  hands,  such  services  are  in  the  nature  of  sal- 
vage, even  although  the  work  done  may  be  of  no  great 
difficulty  or  importance.^ 

If  the  salvors,  instead  of  being  mere  volunteers,  are 
actually  engaged  by  the  ship  in  distress  they  are  enti- 
tled to  be  paid  for  the  efforts  they  make,  notwithstand- 
ing their  labors  may  prove  of  no  benefit.* 

Persons  who  assist  a  vessel  in  distress,  at  the  request 
of  her  master  or  owner,  with  no  definite  arrangement 
for  compensation,  must  ordinarily  be  paid  as  salvors.^ 

If  a  vessel  in  a  gale  of  wind  hail  a  steamer  to  lie  by 
her  to  take  her  in  tow  if  required,  and  the  steamer  do 
so,  even  should  the  ship  ride  out  the  gale  safely  with- 
out the  assistance  of  the  steamer,  the  latter  would 
nevertheless  be  entitled  to  salvage.^ 

Upon   the   same   principle,  salvage  was  decreed  to 


Ranger,  9   Jur.  llf);   The   Albion,         «  The  Bomarsund,  Lush.  77. 
3  Hagp.  254) ;  The  Mary,  1  W.  Rob.         *  The  Undaunted,  Lush.  77.   See 

457;  The  Ranger,  9  Jur.  119;  The  also  The  Prince  of  Wjvles,  6  Notes 

Lockwooda,  9.Jur.  1017:  TheNarra-  of  Cases,  39;  The  E.  U.,  1  Spinks, 

gansett,  Olcott,  392;  Talbot  u.  See-  63  ;  The   Aztecs,  21   L.    T.  n.    s. 

man,  1  Cranch,  1.  797. 

^  Brooks  V.   The   Wm.  Penn,  1         *  The  Ix)uisa  Jane,  2  Ix>w.  295. 
Am.  Law  Reg.  584.  •  The  Undaunted.  Lush.  90;  The 

*  The  Sailor's  Bride,    1  Brown  Ship  Canada,  Bee,  90;  The  Under- 

Adm.  69;   Allen  v.   Newberiy,   21  writer,  4  Blatchf.    04;   The  J.   G. 

How.  244;  McGuirer.  Card,  21  How.  Paiut,  2  Ben.  174. 
24S;  Jackson  v.  The  Magnolia,  20 
How.  296. 


42  ADMIRALTY  LAW. 

persons  who  had  been  actually  engaged  to  render  ser- 
vices which  did  not  in  the  result  contribute  to  the 
safety  of  the  vessel.^ 

If  part  of  a  salvage  service  is  performed  by  one  set 
of  salvors,  and  the  salvage  is  afterwards  completed  by 
others,  the  first  set  are  entitled  to  reward  'pro  tanto  for 
the  services  which  they  actually  render.^ 

And  this  even  although  the  part  they  took,  standing 
by  itself,  would  not  in  fact  have  effected  the  salvage.^ 

If,  however,  the  first  set  of  salvors  abandon  the 
enterprise,  cum  animo  revertendi,  before  its  successful 
completion,  they  will  have  no  legal  claim  to  salvage ; 
and  if  the  abandonment  is  voluntarily  made,  without 
any  advantage  being  taken  of  their  necessities  by  a 
second  set,  such  second  set  may  intervene  and  save 
the  property  and  entitle  themselves  to  the  reward  to 
the  exclusion  of  the  first,  although  they  afterwards 
return  and  claim  to  re-engage  in  the  service.* 

Instances  of  Salvage  Services.  — The  court  of  admiralty 
looks  with  jealousy  on  salvage  by  transshipment,  as 
leading  to  deception  on  owners  and  underwriters,^  and 
will  refuse  to  regard  transshipment  of  cargo  by  itself 
as  a  salvage  service  ;  but  if  the  cargo  be  in  any  danger 
at  the  time,  then  the  service  assumes  a  salvage  charac- 
ter, and  those  rendering  it  are  entitled  to  be  rewarded 
as  salvors.^ 

1  The  Pontiac,  Newb.  130;  see  laid  down  by  the  Privy  Council  in 
also  The  S.  W.  Downs,  Newb.  4.58.  the  case  of  The  Atlas,  ubi  supra  ; 

2  The  Samuel,  15  Jur.  407;  The  The  Santipore,  1  Spinks,  231.  See 
Undaunted,  1  Lush.  90.  also  The  Magdalen,  31  L.  J.  Adra. 

»  The  Atlas,  Lush.  518-527.  See  22 ;  The  Coromandel,  Swa.  205. 
also  The  Jonge  Bastiaan,  5  C.  Rob.  *  The    India,    1   W.    Rob.    406; 

323;   TheR.  U.,1  Spinks,  63;   The  The  Schooner  John  Wurts,  Olcott, 

Genessee,  12  Jur.  401 ;  The  Rosalind  R.   462  :    The    Henry   Ewbank,    1 

(Irish  case),  12   L.  T.  n.  s.   5.53;  Sumn.  400. 

same  case  reported  in  2   Maritime         ^  The  Hope,  3  Hagg.  423,  424. 
Law  Cases,  220,  ui)on  the  principle         *  The  Westminster,  1  W.  Rob. 


SALVAGE.  43 

It  is  doubtful  whether  the  mere  giving  of  advice  or 
information  as  to  locality,  even  to  a  foreign  vessel 
(especially  if  the  vessel  proceeded  against  was  in  no 
actual  distress  at  the  time,  or  required  only  pilotage 
assistance),  will  entitle  the  person  giving  it  to  salvage 
reward.^ 

If,  however,  the  advice  is  accompanied  by  enterprise 
or  risk  on  the  part  of  those  giving  it,  the  service  will 
be  held  to  be  one  of  salvage.'^ 

The  ignorance  of  the  master  in  such  a  case  will  not, 
under  ordinary  circumstances,  tend  to  augment  a  ser- 
vice where  simple  pilotage  only  was  required,  into  one 
of  salvage ;  but,  under  other  circumstances,  ignorance 
of  locality  may  be  an  important  matter.^ 

Persons  who  communicate  to  a  vessel  which  subse- 
quently renders  salvage  services  the  condition  of  the 
vessel  in  distress,  and  thus  lead  to  her  being  saved,  are 
to  be  regarded  as  salvors.* 

And  where  a  messenger  travelled  a  distance  of 
twelve  miles  for  the  purpose  of  procuring  assistance 
for  a  vessel  in  distress,  he  was  decreed  salvage  remu- 
neration.^ 

If  one  vessel  save  another  from  an  impending  colli- 
sion, she  will  be  entitled  to  salvage.' 

But  where  a  collision  happens  between  two  vessels, 
and  both  are  to  blame,  the  crew  of  one  vessel  cannot 

229;  The  Columbia,  3  Ilagg.   428.  «  The  Cumberland,  9  Jur.  191, 

See  also  The  Purissima  Concepcion,  192,  n. 

3  W.  llob.  181,  and  The  Cargo  ex  *  The  Ocean,  2  W.  Rob.  91.  See 

Honor,  L.  R.  1  Adm.  87.  also  The  Carrier  Pigeon,  4  Irish  Jur. 

*  The  Little  Joe,  Lush.  68;  The  n.  8.  99.   And  see  Ship  Arctic,  Bee, 

Vrow  Mar«aretha,  4   C.  Rob.   103.  232. 

But  see   The   American  Insurance  '  The  Elizabeth  Bibby,  3  Irish 

Co.  V.  Charles  Johnson,   1  Blatclif.  Jur.  257. 

&  Howl.    30  (the   case    begins    at  •  The  Saratoga,  Lush.  318.    See 

p>  !)•  also  The  Annapolis,  Lush.  355. 

a  The  Eliza,  Lush.  536. 


44  ADMIRALTY  LAW. 

claim  salvage  for  rescuing  part  of  the  cargo  on  board 
the  other.^ 

If,  however,  those  rendering  salvage  services  after  a 
collision  are  proved  to  have  been  the  innocent  parties, 
thej  are  entitled  to  claim  as  salvors.^ 

The  court,  however,  is  indisposed  to  encourage  sal- 
vage suits  which  are  engrafted  upon  collision,  espe- 
cially where  the  services  rendered  are  small.^ 

Successful  exertions  by  the  crew  of  one  vessel  to 
avoid  an  impending  collision  with  another  are  not  sal- 
vage services.* 

Upon  a  collision,  each  vessel  is  bound  to  render  to 
the  other  any  aid  necessary.^ 

Where  two  vessels  at  anchor  came  into  collision 
without  fault,  and  to  prevent  destruction  one  of  them 
slipped  her  cable  and  went  ashore,  no  claim  for  a  sal- 
vage service  arose  as  against  the  other  vessel.^ 

A  vessel  condemned  in  damages  for  a  collision  will 
not  be  allowed  salvage  for  rescuing  and  towing  the 
injured  vessel  to  a  place  of  safety.^ 

The  supplying  of  men  to  a  ship  that  is  short-handed, 
or  a  master  to  a  vessel  whose  master  has  died  or  is 
sick,  is  a  service  in  the  nature  of  salvage.® 

Thus,  where  the  crew  of  the  "  Roe,"  whilst  on  the  high 
seas,  having  been  much  reduced  by  death  and  sickness, 
another  vessel,  the  "  Abdalla,"  supplied  the  deficiency 

1  The  Cargo  ex  Capella,  L.  R.  rines,  2  Mason,  337;  The  Dawn, 
1  Adin.  356.  2  Ware  (Dav.),  137;  The  Calypso, 

2  The  Hannibal  and  The  Queen,    2  Hagjr.  Adm.  217. 

L.  R.  2  Adm.  53.    See  The  Sappho,         *   The    Clarita    and    Clara,    23 

Swa.  242.  Wall.  1. 

8  The   Sappho,  vhi  supra.     See         •  Beane  v.  The  Mayurka,  2  Curt. 

also  The  H.  M.  Hayes,  Lush.  355.  72. 

*  The    John    Perkins,   11    Law         ^  The  Sampson,  4  Blatchf.  28. 
Rep.  N.  s.  87;  The  Acorn,  11  Law         «  The  Janet  Mitchell,  Swa.  Ill; 

Rep.   N.  8.  99;  Beane  v.  The  Ma-  The    Golondrina,   L.   R.    1   Adm. 

yurka,  2  Curt.  78;  The  Two  Cathe-  334. 


SALVAGE.  45 

by  two  from  among  her  own  crew,  it  was  held  that  not 
only  these  men,  but  the  rest  of  the  crew  of  the  "  Ab- 
dalla  "  were  entitled  to  salvage.^ 

Instances  of  other  Salvage  Services.  —  Saving  lives  and 
property  on  board  a  burning  ship  is  a  salvage  service.* 

Assisting  to  extinguish  the  flames  in  a  vessel,  which 
has  taken  fire  by  spontaneous  combustion,  and  towing 
her  into  port,  is  a  service  in  the  nature  of  salvage.* 

The  towing  into  a  place  of  safety  of  a  vessel  lying 
in  dock,  and  in  danger  of  catching  fire  from  the  sur- 
rounding warehouses,  which  were  in  flames ;  *  and  the 
saving  of  the  cargo  from  a  vessel  on  shore  and  wrecked;^ 
the  rescuing  of  a  raft  of  timber  floating  out  to  sea,®  — 
are  salvage  services. 

Salvage  services  may  be  rendered  to  a  raft  of  timber 
found  derelict,  and  a  lien  therefor  enforced  in  admiralty.^ 

The  bringing  into  port  of  a  derelict  vessel,^  or  part 
of  her  cargo ;  ^  the  furnishing  of  an  anchor  and  chain 
in  boisterous  weather  to  a  vessel  at  sea  which  had 
slipped  her  cable ;  *®  the  getting  of  a  vessel  afloat 
which  had  driven  ashore ; "  the  raising  of  a  sunken 
vessel  by  means  of  apparatus,^  —  are  salvage  services. 

1  The  Roe,  Swa.  84.  And  the  man  v.  The  Erie  R.  R.  Co.,  2  Ben. 
same  doctrine  was  held  in  The  128;  The  Circassian,  2  Ben.  171; 
Charlotte  Wylie,  5  Notes  of  Cases,  4.     The  Jack  Jewett,  2  Ben.  463. 

See  also  The  Brig  Aiphonso,  1  Curt.  ^  Fifty  Thousand  Feet  of  Tim- 

C.  C.  376;  The  Bark  George  Nich-  ber,  2  Low.  64. 

olaus,  Newb.  499.  •  The  Atlas,  ubi supra:  The  Coro- 

2  The  Eastern  Monarch,  1  Lush,  mandel,  ubi  supra;  The  Magdalen, 
81.  ubi  supra. 

«  The  Rosalie.  1  Spinks,  188.  '  The  King  v.  Property  Derelict, 

*  The  Tees  and  The  Pentucket,  1  Hagg.  383. 

1  Lush.  .W5.  !<•  The  Undaunted,  Lush.  90;  The 

«  A  Raft  of  Spars,  1  Abb.  485.  Prince  of  Wales,  6  Notes  of  Cas.  39. 

•The    Atlas,   Lush.    518;    The  »  The  Rajasthan,  Swa.  171;  The 

Coromandel,  Swa.  205;  The  Magda-  Alfen,   Swa.    189;   The  Himalaya, 

len,  31  L.  J.  Adm.  22  (but  see  post,  Swa.  515.     And  see  The  J.  T.  Ab- 

from  Taney,   5.33).    See   also  The  bot.  2  Sprague,  101. 

Eleanore,  33  L.  T.  Adm.   19;   See-  "  The  Catherine,  12  Jur.  682. 


46  ADMIRALTY  LAW. 

The  recapture  of  a  vessel  from  pirates,^  or  from  in- 
surgent slaves,^  or  out  of  the  hands  of  an  enemy  ;  ^  and 
the  rescue  and  removal  into  deep  water  of  a  vessel 
which  was  ashore  and  in  danger  of  being  plundered  by 
ravagers,*  —  have  all  been  held  to  be  salvage  services. 

A  tug  that  had  brought  up  to  a  pier,  and  within 
reach  of  the  fire  department,  a  barge  loaded  with  alco- 
hol, upon  which  fire  had  broken  out,  has  been  held 
entitled  to  salvage.^ 

With  reference  to  the  case  just  above  cited,  as  to  the 
rescuer  of  a  raft  of  lumber,  I  would  observe,  that,  in  a 
case  decided  by  Taney  (Chief  Justice),  acting  as  Circuit 
Justice,  it  is  said  that  "  where  rafts  of  lumber  anchored 
in  the  Susquehanna  River  at  Port  Deposit,  within  the 
flux  and  reflux  of  the  tide,  are  driven  from  their  anchor- 
age by  a  high  wind  and  tide,  but  are  not  broken  up, 
and  whilst  floating  down  the  stream  are  rescued  and 
brought  to  the  shore,  this  is  not  a  salvage  service."  ® 

Where  the  master  of  a  vessel  was  killed  in  an  affray, 
and  the  second  mate  was  so  badly  hurt  as  to  be  incap- 
able of  doing  duty,  and  the  first  mate  hurt,  but  he  took 
command  and  headed  the  vessel  to  port,  signalling  a 
passing  vessel  for  relief,  which  afforded  the  relief,  —  the 
mate  and  the  salving  vessel  had  performed  salvage 
services.^ 

1  The  Marianna,  3  Hagg.  206.  the  crew  of  a  ship  could  not  claim 
See  The  Mary,  1  W.  Rob.  448;  The  salvage  for  rescuing  it  from  muti- 
Calypso,  2  Hagg.  209.  neers). 

2  The  Trelawney,  4  C.  Rob.  233.  6  Corwin  and  Others  v.  Barge 
See  The  Anne,  5  C.  Rob.  100.  Jonathan  Chase  (1880),  2  Fed.  Rep. 

«  The  Beaver,  3  C.  Rob.  290.  See  268;  The  Branston,  2  Hagg.  Adm. 

also  The  Louisa,  1  Dods.  317;  The  3;  Beane  v.  The  Mayurka,  2  Curt. 

Frances  and  Eliza,   2   Dods.  115  ;  78. 

The  Franklin,  4  C.  Rob.  147;  The         •  Tome  v.  Four  Cribs  of  Lum- 

Urania,  5  C.  Rob.  147.  ber,   Taney,  547,  cited  in  5  Biss. 

*  The  Lady  Worsley,  2  Spinks,  308. 
253  (but  see  The  Governor  Raffles,         '  The  J.  L.  Bowen,  5  Ben.  298; 

2  Dods.  14,  where  it  was  held  that  The  Janet  Mitchell,  Swa.  Ill;  The 


SALVAGE.  47 

In  all  cases  where  services  are  rendered  in  saving 
property  in  danger  of  being  lost  on  the  high  seas,  or 
when  wrecked  or  stranded  on  the  shore,  it  is,  in  the 
sense  of  the  maritime  law,  a  salvage  service.^ 

To  constitute  a  salvage  service,  it  is  not  necessary 
that  a  vessel,  whether  sailing  or  steam,  should  be  un- 
navigable,  or  that  a  steam-vessel  should  be  injured,  not 
merely  in  her  machinery,  but  in  her  hull,  or  her  sails.^ 

A  steamboat,  having  been  dismantled  and  stripped  of 
her  boiler,  engine,  and  paddle-wheels,  was  fitted  up  as 
a  saloon  and  hotel,  and  while  being  towed  to  another 
locality,  there  to  be  used  for  a  similar  purpose,  is  not  a 
subject  for  salvage  service,  as  not  being  engaged  in 
commerce  and  navigation.^ 

Where  the  owner  abandons  all  effort  to  save  her, 
and  a  third  party,  at  his  own  risk  and  expense,  gets  her 
off  and  repairs  her,  it  is  in  the  nature  of  salvage 
services.* 

Where  a  stranded  steamer  employs  another  to  get 
her  off,  herself  furnishing  some  of  the  necessary  motor 
power  and  diiects  the  movements,  the  hired  vessel  does 
not  run  the  risks  of  salvage  service.^ 

A  vessel,  in  point  of  fact,  for  twelve  or  fourteen 
hours  in  a  condition  where  her  instant  destruction  was 
menaced,  and  the  lives  of  those  who  might  remain  on 
board  of  her  greatly  jeopardized,  may  be  rightly  taken 
possession  of  by  salvors.* 

Czarina,  2  Sprague,  48;  Williamson         '  The  Saragossa,  1  Ben.  551 ;  The 

V.  The  Alphonso,  1  Curt,  376;  The  Emily  B.  Souder,  7  Ben.  555. 
Roe,  Swa.  84;  The  Goloudrina,  Law         »  The  Hendrik  Hudson,  3  Ben. 

Rep.  1  Adm.  &  E.  334.  419. 

1  The  Independence,  2  Curt.  355;         *  Barney  v.  Eaton,  1  Biss.  242. 
The  Centurion,  1  Ware,  477;  The         «  The  Virginia,  3  Biss.  49. 
Emulous,  1  Sumn.  207;  Bearse   ».         •  The  John  Gilpin,    Olcott,  80; 

Pigs  of  Copper,  1  Story,  314;  The  Clarke  p.  The  Dodge  Healy,  4  Wash. 

Pontiac,  Newb.  137;  8.  c  5  McLean,  C.  C.  651. 
367. 


48  ADMIRALTY  LAW. 

A  barge,  without  a  small  boat  or  any  means  of  pro- 
pulsion, adrift,  although  she  came  to  anchor  and  the 
weather  was  good,  was  in  a  situation  to  have  salvage 
service  performed ;  but  an  adjustment  of  the  same  by 
the  owner  of  the  cargo  was  not  binding  on  the  vessel.^ 

Salvage  was  allowed  in  a  case  where  a  vessel  and 
cargo  were  found  waterlogged,  abandoned,  and  appar- 
ently, though  in  fact  not,  derelict.^ 

A  wrecking  steamer,  wrecked  on  a  salving  enterprise, 
may  be  the  subject  of  salvage  by  the  company  which 
chartered  it.^ 

A  derrick  boat  raised  from  the  bottom  of  the  chan- 
nel of  a  public  navigable  river  may  be  the  subject  of 
a  libel  for  salvage  in  admiralty.* 

Life  Salvage.  —  Formerly  the  English  court  of  admi- 
ralty had  no  authority  to  give  salvors  any  reward  for 
the  saving  of  human  life  in  cases  where  it  was  not  con- 
nected with  the  preservation  of  property.^ 

To  remedy  this  defect  in  the  law,  it  was  provided  by 
the  Merchant  Shipping  Act,  1854,  that  reasonable  sal- 
vage should  be  payable  to  those  who  rendered  assist- 
ance in  saving  the  Kves  of  the  persons  belonging  to 
any  ship  or  boat  stranded,  or  otherwise  in  distress,  on 
the  shore  of  any  sea  or  tidal  water  within  the  limits  of 
the  United  Kingdom.  The  provisions  were  subse- 
quently extended  by  24  Vict.  ch.  10,  §  9.  By  section 
459  of  17  &  18  Vict.  ch.  104,  life  salvage  takes  priority 
over  all  other  claims  for  salvage.  See  Jones's  Law 
of  Salvage,  17  (London,  1870),  and  Coote's  Practice, 
p.  4  (London,  1869),  2d  ed. 

1  The  Union  Express,  1  Brown  *  E.  O.  Maltby  v.  Steam  Derrick 
Adm.  516.  Boat,  3  Hughes,  477. 

2  The  Senator,  1  Brown  Adm.  *  The  Silver  Bullion,  2  Spinks, 
372.  70, 74. 

»  The  Aroma  Mills,  2  Hughes,30. 


SALVAGE.  49 

In  the  American  admiralty  it  has  been  held  that 
there  is  no  salvage  for  saving  life  alone ;  but  sav- 
ing life  enhances  the  amount  of  salvage  for  saving 
property.^ 

Gallantry  and  exposure  in  the  rescue  of  life  and 
property  are  entitled  to  the  highest  reward.^ 

A  stoppage  to  save  the  crew  of  a  wrecked  ves- 
sel and  sinking  ship,  whose  lives  are  in  jeopardy, 
is  justifiable,  and  is  not  a  deviation  that  discharges 
underwriters ;  but  a  delay  to  save  property  is  such  a 
deviation.^ 

Military  Salvage, — The  compensation  given,  on  the 
principles  of  salvage,  where  a  vessel  or  cargo  is  recap- 
tured from  pirates  or  enemies,  before  condemnation  as 
prize,  is  termed  military  salvage. 

By  section  4652  of  the  United  States  Revised  Stat- 
utes it  is  provided  that,  when  any  vessel  or  other  prop- 
erty shall  have  been  captured  by  any  force  hostile  to 
the  United  States,  and  shall  be  recaptured,  and  it  shall 
appear  to  the  court  that  the  same  had  not  been  con- 
demned as  prize  before  its  recapture,  by  any  competent 
authority,  the  court  shall  award  a  meet  and  competent 
sum  as  salvage,  according  to  the  circumstances  of  each 
case.  If  the  captured  property  belonged  to  the  United 
States,  it  shall  be  restored  to  the  United  States,  and 
there  shall  bQ  paid  from  the  treasury  of  the  United 
States,  the  salvage,  costs  and  expenses  ordered  by  the 
court 


»  12  Law  Rep.   n.  s.  27G;   The  1  Sumn.  328;  The  Henry  Ewbank, 

Emblem,  2  Ware,  61;  Bark  George  1  Sumn.  400;  Bond  v.  Brig  Cora, 

Nicholaus,   Newb.    449;    The  Sar-  2  Wash.  C.  C.  80;  Perkins  v.  Au- 

pedon.  18  Alb.  L.  J.  37.  gusta  Insurance  Co.,  10  Gray,  312; 

*  The  n.  B.  Foster,  Abb.  Adm.  A  Box  of  Bullion,  1  Sprague,  57; 
232;  The  Anna,  6  Ben.  169.  Bark     George    Nicholaus,     Newb. 

•  The  Schooner  Boston  and  Cargo,  449. 

4 


50  ADMIRALTY  LAW. 

If  the  recaptured  property  belonged  to  persons  re- 
siding within,  or  under  the  protection  of,  the  United 
States,  the  court  shall  adjudge  the  property  to  be 
restored  to  its  owners,  upon  their  claim,  on  the  pay- 
ment of  such  sum  as  the  court  may  award  as  salvage, 
costs,  and  expenses. 

If  the  recaptured  property  belonged  to  any  person 
permanently  resident  within  the  territory  and  under 
the  protection  of  any  foreign  prince,  government,  or 
state,  in  amity  with  the  United  States,  and  by  the 
law  or  usage  of  such  prince,  government,  or  state  the 
property  of  a  citizen  of  the  United  States  would  be 
restored  under  like  circumstances  of  recapture,  it  shall 
be  adjudged  to  be  restored  to  such  owner,  upon  his 
claim,  upon  such  terms  as  by  the  law  or  usage  of  such 
prince,  government,  or  state  would  be  required  of  a 
citizen  of  the  United  States  under  like  circumstances 
of  recapture ;  or,  when  no  such  law  or  usage  shall  be 
known,  it  shall  be  adjudged  to  be  restored  upon  the 
payment  of  such  salvage,  costs,  and  expenses  tis  the 
court  shall  order.  The  whole  amount  awarded  as  sal- 
vage shall  be  decreed  to  the  captors,  and  no  part  to 
the  United  States,  and  shall  be  distributed  as  in  the 
case  of  proceeds  of  property  condemned  as  prize.  Noth- 
ing in  this  title  shall  be  construed  to  contravene  any 
treaty  of  the  United  States.^ 

By  section  4642  of  the  United  States  Revised 
Statutes  it  is  enacted  that  all  ransom-money,  salvage, 
bounty,  or  proceeds  of  condemned  property,  accruing 

1  The      Schooner     Adeline,     9  surance  Co.,  3  Sumn.  270;  12  Op. 

Cranch,  244;  The  Star,  3  Wh.  78;  Att.-Gen.  289;  Captain  Carpenter, 

Moodie  v.   Brig  Harriet,  Bee,  128;  for  himself  and  Officers  and   Crew 

Talbot  0.  Seeman,  1  Cranch,  1;  Clay-  of   The  Iris,   v.    French    Ship   Eu- 

ton  et  al.  v.   Ship  Harmony,  1  Pet.  genie,  7  West.  L.  J.  326. 
Adm.  70;  Williams  v.  Suffolk  In- 


SALVAGE.  61 

or  awarded  to  any  vessel  of  the  navy,  shall  be  distrib- 
uted and  paid  to  the  officers  and  men  entitled  thereto 
in  the  same  manner  as  prize-money,  under  the  direction 
of  the  Secretary  of  the  Navy. 

Section  3689  of  the  United  States  Revised  Statutes, 
2d  edition,  at  page  728,  provides  that  one  moiety  of  the 
proceeds  of  prizes  captured  by  vessels  of  the  United 
States  be  distributed  to  the  officers  and  crews  thereof, 
in  conformity  to  the  provisions  of  title  "  Prize ;  "  also 
the  proceeds  of  derelict  and  salvage  cases  adjudged  b}'^ 
the  courts  of  the  United  States  to  salvors. 

By  section  4759  of  the  United  States  Revised  Stat- 
utes it  is  provided  that  two  per  centum  on  the  net 
amount,  after  deducting  all  charges  and  expenditures, 
of  the  prize-money  arising  from  captured  vessels  and 
cargoes,  and  on  the  net  amount  of  the  salvage  of  ves- 
sels and  cargoes  recaptured  by  the  private  armed 
vessels  of  the  United  States,  shall  be  secured  and  paid 
over  to  the  collector  or  other  chief  officer  of  the  cus- 
toms at  the  port  or  place  in  the  United  States  at  which 
such  captured  or  recaptured  vessels  may  arrive  ;  or  to 
the  consul  or  other  public  agent  of  the  United  States 
residing  at  the  port  or  place,  not  within  the  United 
States,  at  which  such  captured  or  recaptured  vessels 
may  arrive.  And  the  moneys  arising  therefrom  are 
pledged  by  the  government  of  the  United  States  as  a 
fund  for  the  support  and  maintenance  of  the  widows 
and  orphans  of  such  persons  as  may  be  slain,  and  for 
the  support  and  maintenance  of  such  persons  as  may 
be  wounded  and  disabled,  on  board  of  the  private  armed 
vessels  of  the  United  States,  in  any  engagement  with 
the  enemy,  to  be  assigned  and  distributed  in  such  man- 
ner as  is  or  may  be  provided  by  law. 

To  constitute  a  case  for  military   salvage   for  the 


52  ADMIRALTY  LAW. 

recapture  of  a  vessel  taken  as  prize,  it  must  appear 
that  the  property  was  in  the  possession,  either  actual 
or  constructive,  of  the  enemy ;  and  that  it  was  in 
actual  hazard  of  being  condemned  as  prize.  The 
recapture  must  be  lawful,  and  there  must  have  been  a 
meritorious  service  rendered  to  the  recaptured.^ 

Military  salvage  will  not  be  allowed  merely  on 
account  of  stopping  a  ship  from  going  into  an  enemy's 
port.^ 

In  the  case  of  The  Star,  Dickinson  et  al,  Claimants, 
3  Wheat.  78,  Story,  J.,  delivering  the  opinion  of  the 
court,  said :  "  This  is  the  case  of  an  American  ship  cap- 
tured by  the  enemy  during  the  late  war,  and,  after 
condemnation  and  sale  to  an  enemy  merchant,  recap- 
tured by  the  American  private  armed  ship  "  Surprise." 
And  the  question  is,  whether,  under  these  circum- 
stances, the  ship  is  to  be  restored  on  salvage  to  the 
former  American  owner,  or  condemned  as  good  prize 
of  war."  And  the  opinion  concludes  with  these  words : 
"  The  court  are  of  opinion  that  the  property  having 
been  previously  condemned,  and  title  passed  to  the 
enemy,  and,  consistently  with  the  salvage  and  prize 
acts,  must  be  decreed  to  be  good  prize  of  war." 
Therefore  salvage  was  not  allowed. 

For  other  cases  where  salvage  was  not  allowed,  see 
Waitestal  v.  Brig  Antelope  and  Cargo,  Bee,  233 ;  The 
Robert  Hall,  Edwards  Adm.  Rep.  265,  judgment  of  Sir 
William  Scott ;  The  Dorothy  Foster,  6  Rob.  Adm.  58 ; 
Talbot  V.  Seeman,  1  Cranch  1 ;  The  Wan  Onskan,  2 
Rob.  Adm.  299. 

MiUtary  Salvage.  —  The  right  to  salvage  on  recapture 

1  Talbot  V.  Seeman,   1  Cranch,    skins,    2    Paine,   324;    The    Anne 
28-,  Murray  v.  The  Charming  Betsy,    Green,  1  Gall.  274,  289. 
2    Cranch,    121 ;    Davison  v.  Seal-         "  The  Anne  Green,  ubi  supra. 


SALVAGE.  53 

is  recognized  and  regulated,  not  created,  by  act  of  Con- 
gress.^ 

Recapture  from  pirates  gives  a  fair  claim  for  sal- 
vage.'' 

When  the  act  of  Congress  does  not  comprehend  the 
case,  then  the  court  is  to  decide,  on  a  just  estimate  of 
the  danger  from  which  the  recaptured  was  saved,  and 
the  risk  attending  the  retaking  of  the  vessel,  what  is  a 
reasonable  salvage.* 

The  valuation  is  to  be  taken  at  the  place  of  restitu- 
tion. 

The  value  is  to  be  considered  with  reference  to  the 
moment  of  arrival  in  port,  for  the  captors  have  no  right 
to  a  salvage  or  any  additional  value  which  the  cargo 
may  acquire  by  the  payment  of  duties,  and  other  inci- 
dental expenses  incurred  afterwards.  The  valuation  is 
to  be  taken  at  the  port  of  restitution  dedudis  dedur 
cendis} 

From  the  Federal  Reporter  of  February  15,  1881, 
I  extract  the  following,  in  the  case  of  Coffin  v.  The 
Brig  Akbar  (District  Court,  E.  D.  New  York,  De- 
cember 29,  1880) :  — 

The  crew  of  the  brig  "  Akbar,"  bound  from  Havana  for  New 
York  with  a  cargo  of  sugar,  when  five  days  out,  were,  with 
the  exception  of  the  mate,  who  was  ailing,  and  one  seaman, 
taken  down  with  yellow  fever.  Held^  wlieie  the  brig  was 
boarded  by  the  master  and  mate  of  the  schooner  "  Muuson," 
then  short  the  chief  mate  and  one  seaman,  in  answer  to  a 
signal  of  distress,  and  command  was  assumed  by  the  mate, 
who  brought  her  safe  to  New  York,  and  where  neither  the 
master  nor  the  mate  nor  the  "  Munson  "  sustained  any  injury 

1  Talbot  V.  Seeman,  1  Cranch,  1.         *  The  Progfress,   Edwards  Adm. 

«  The  Theodore,  I  Op.  Att.-Gen.  Rep.  at  pp.  22.^224,  judgment  of 

597  (Wirt).  Sir  WiUiam  ScotU 
»  Ibid,  at  p.  44. 


54  ADMIRALTY  LAW. 

therefrom,  that  the  "  Akbar  "  and  cargo  should  pay  the  sum 
of  $3,600  for  the  services  rendered. 

Held,  further,  that  of  this  sum  |2,500  should  be  awarded  to 
the  mate ;  $500  to  the  owners  of  the  "  Munson  ; "  8350  to  the 
master ;  and  the  remaining  $250  should  be  divided  among 
the  crew,  —  certain  seamen  who  went  in  the  boat  to  the 
"  Akbar "  with  the  master  and  mate  receiving  a  double 
share. 

Held,  further,  that  the  extra  labor  cast  upon  one  of  the 
crew  of  the  "  Akbar "  by  the  sickness  of  the  rest  did  not 
give  him  a  right  to  claim  salvage. 

Services  rendered  in  pulling  boilers  out  of  a  naviga- 
ble river,  into  which  they  had  fallen  from  a  steamboat, 
are  salvage  services.^ 

In  the  case  of  Lamar  et  at  v.  The  Barque  Penelope, 
United  States  District  Court,  District  of  South  Carolina, 
Magrath,  J.  (manuscript,  not  reported),  it  was  held 
that  a  salvage  service  is  not  disregarded  because  with- 
out it  the  vessel  might  have  escaped,  but  it  is  rewarded 
because  by  it  a  vessel  exposed  to  danger  was  brought 
safely  into  port. 

Section  IL— WHO  MAY  CLAIM  AS  SALVORS. 

A  salvor  is  one  who,  without  any  particular  relation 
to  a  vessel  in  distress,  proffers  useful  service,  and  gives 
it  as  a  voluntary  adventurer,  without  any  pre-existing 
covenant  connecting  him  with  the  duty  of  preserving 
the  vessel.^ 

A  person  whose  oxen  are  used  in  a  salvage  service 
does  not  thereby  become  a  salvor.* 

1  The  Silver  Spray's  Boilers,  1  Drogan,  10  Pet.  108;  The  Clarita 
Brown  Adm.  &  R.  Cases,  349.  and  Clara,  23  Wall.  1;  The  Acorn, 

2  The  Charles,  Newb.  333;  The    3  Ware,  99. 

Neptune,  1  Hasrg.  Adm.  227;  Leau.         »  The  Ottawa,  1  Low.  274. 
Alexander,  2  Paine,  472 ;  Hobart  v. 


SALVAGE.  55 

Nor  does  one  who  supplies  tools,  &c.,  to  assist  in  the 
service,^  or  who  supplies  blocks;'^  nor  one  who  pur- 
chases a  wreck.* 

Firemen  belonging  to  the  fire  department  of  a  city, 
extinguishing  a  fire  in  a  ship  at  the  wharf,  do  not  be- 
come salvors.* 

The  Crew.  —  The  crew  of  a  vessel  being  bound  by 
their  contract  to  salve  the  ship  and  cargo  in  case  of 
danger  or  shipwreck,  it  is  a  general  and  almost  inflex- 
ible rule  that  they  are  not  permitted  to  assume  the 
character  of  salvors.* 

If,  however,  the  contract  between  .the  owners  and  the 
crew  be  terminated  by  the  abandonment  of  the  vessel, 
the  crew  may  become  entitled  to  salvage  reward  for 
the  services  they  subsequently  render  towards  the 
preservation  of  the  ship  or  cargo.^ 

An  abandonment,  to  operate  as  a  dissolution  of  the 
contract,  must,  however,  be  bona  fide  and  final.' 

Capture  by  a  belligerent  dissolves  or  suspends  the 
connection  between  the  seamen  and  other  vessels.® 

Even  if  there  be  no  abandonment  of  the  vessel,  the 
seamen's  contract  may  be  dissolved  by  the  act  of  the 
master  in  discharging  them.® 

Seamen  generally  cannot  be  salvors  of  their  own 
vessel.^'^ 

1  The  Ottawa,  1  Low.  277;  The         «  The    Florence,    16   Jur.  572; 

Charlotte,  3  W.  Rob.  68;  The  Vine,  The   Wamor,    1    Lush.   476;    The 

2  Hagg.  Adm.  1.  Neptune,   1   Hagg.   227-237;    The 

a  Squire  v.  Tons  of  Iron,  2  Ben.  Brede,  30  L.  J.  Adm.  208. 
24;  The  Independence,  2  Curt.  350.         '  The  Florence,  16  Jur.  572  (by 

«  Benjamin  v.   The  Watchman,  Dr.  Lushington). 
11  Law  Rep.  n.  s.  40.  »  The  Two  Friends,  1  C.  Rob. 

*  Davey  v.   The  Mary  Frost,  2  271. 
Woods,  306.  »  The  Warrior,  Lush.  476. 

6  The  Governor  Raffles,  2  Dods.        "  Miller   v.   Kelly,   Abb.    Adm. 

14;  The   Two   Friends,  1  C.Rob.  564;  The  John  Perkins,  9  Law  Rep. 

271,  278;  The  Beaver,  3  C.  Rob.  292.  n.  s.  490;  21  Law  Rep.  99. 


56  ADMIRALTY  LAW. 

For  ordinary  exertions  in  the  discharge  of  their  duty 
the  crew  are  not  entitled  to  salvage.^ 

There  may  be  cases  in  which  seamen  may  be 
salvors.'' 

By  performing  services  beyond  the  line  of  their 
duty  they  become  salvors  ;  as  when  one  seaman  re- 
mains on  the  wreck  after  abandonment,  and  aids  in 
saving  her.^ 

So  if  a  ship  be  abandoned  at  sea,  and  deserted  by  all 
her  crew  except  one  or  two,  and  these  remain  on  board 
and  save  her,  or  materially  assist  in  saving  her,  they 
become  salvors.* 

Seamen  may  be  salvors  after  their  contract  of  service 
is  dissolved.® 

They  may  become  salvors,  whether  the  contract  is 
dissolved  voluntarily  by  the  master,  or  by  the  effect  of 
a  vis  major  ^ 

Seamen  may  become  salvors  when  their  connection 
with  the  vessel  is  entirely  broken  up.^ 

1  The  Two  Catherines,  2  Mason,  Cranch,  240  ;  The  Triumph,  1 
835;  Mason  v.  The  Blaireau,  2  Sprague,  428,  distinguishing  The 
Cranch,  240.  And  see  Giles  v.  The  John  Perkins,  11  Law  Rep.  n.  s. 
Cynthia,  1  Pet.  Adm.  203;  Weeks  87.  And  see  Hobart  t.  Drogan,  10 
V.   The    Catharina    Maria,   2    Pet.  Pet.  108. 

Adm.   424;   Hobart  v.  Drogan,  10         *   Mason    v.    The     Blaireau,    2 

Pet.    108;   The   Holder  Borden,   1  Cranch,  240;  Hobart  u.  Drogan,  10 

Sprague,   144;  The  Wave  v.  Hyer,  Pet.  122;  The  Triumph,  1  Sprague, 

2  Paine,  140.  428;  s.  c.  11   Law  Rep.  n.  8.  612; 

2  The  Massasoit,  1  Sprague,  98;  The  John  Perkins,  9  Law  Rep.  N.  8. 
The  Neptune,  1  Hagg.  Adm.  227;  490;  Cartwell  r.  The  John  Taylor, 
The  Two  Catherines,  2  Mason,  319;  Newb.  341. 

Mason  v.  The  Blaireau,  2  Cranch,  *  The  Olive  Branch,  1  Low.  287; 

240.  Mason  v.  The  Blaireau,  2  Cranch, 

8    Mason    v.    The    Blaireau,    2  240;  The  Triumph,  1  Sprague,  428; 

Cranch,   240;    Hobart  v.    Drogan,  The  John  Perkin.s,  21  Law  Rep.  87; 

1   Pet.    108;   Taylor   o.  The   Cato,  Phillips  v.  McCall,  4    Wash.  C.  C. 

1   Pet.    Adm.  48;   Clayton  v.  The  147;  The  Acorn,  3  Ware,  98. 

Harmony,   1   Pet.   Adm.   79;    The  ^  The  Antelope,  1  Low.  130;  The 

Two  Catherines,  2  Mason,  319.  Olive  Branch,  1  Low.  286. 

*   Mason    v.    The    Blaireau,    2 


SALVAGE.  57 

Extraordinary  circumstances  may  occur,  in  which 
their  connection  with  the  vessel  ni.ay  be  dissolved  de 
facto,  or  by  operation  of  law,  in  which  case  they  may 
claim  as  salvors.* 

Passengers.  —  It  has  been  laid  down  that  passengers 
on  board  a  vessel  in  distress  cannot  claim  salvage  for 
any  assistance  they  render  towards  preserving  the  ship 
and  cargo,  it  being  incumbent  on  all  on  board  to  assist, 
where  there  is  a  common  danger.^ 

If  the  passengers  of  a  vessel  that  has  received  injury, 
but  is  in  no  immediate  danger,  remain  on  board  and 
assist  at  the  pumps  until  the  arrival  of  the  ship  in  port, 
they  will  not  be  entitled  to  salvage.^ 

A  passenger  is  not,  however,  obliged  to  hazard  his 
own  safety  in  order  to  save  the  ship  or  cargo  ;  and  if  he 
voluntarily  remains  o.n  board,  and  makes  extraordinary 
exertions  on  behalf  of  the  ship,  he  will  be  entitled  to 
be  remunerated  as  a  salvor.* 

And  where  a  passenger  took  the  command  of,  and 
brought  safely  into  port,  a  ship  that  had  been  aban- 
doned by  her  crew,  he  was  held  to  be  so  entitled.^ 

In  the  case  of  The  Merrimac,  18  L.  T.  n.  s.  92,  a 
number  of  troops,  who  whilst  being  carried  (under  a 
contract  with  their  government)  on  board  a  steamer, 
by  severe  and  organized  efforts  under  the  command  of 
their  officers  kept  the  vessel  afloat  after  she  had  sprung 
a  leak,  until  she  was  brought  into  a  place  of  safety, 
were  held  not  to  be  passengers,  but  entitled  to  salvage 
reward. 

In  the  case  of  Hamilton  E.  Towle  v.  The  Great  East- 
em,  11  L.  T.  N.  s.  516,  2  Maritime  Law  Cases,  Adm. 

»  Hobart  r.  Drogan,  10  Pet.  122;         *  Ibid. 
The  Two  Catherines,  2  Mason,  339.         '  Newman    v.    Walters,    3  Bos. 

«  The  Branston,  2  Hagg.  3,  n.  &  P.  612.     See  also  The  Salacia,  2 

»  The  Vrede,  1  Lush.  322.  Hagg.  262. 


58  ADMIRALTY  LAW. 

148,  the  "  Great  Eastern  "  having,  in  September,  1861, 
disabled  her  paddle-wheels  and  broken  her  rudder-shaft 
in  a  gale,  lay  in  the  trough  of  the  sea  for  about  thirty- 
six  hours,  during  which  time  the  officers  had  endeav- 
ored in  vain  to  repair  the  damage,  the  libellant,  a 
passenger  on  board,  then,  with  the  consent  of  the  cap- 
tain of  the  ship,  undertook  to  put  into  execution  a  plan 
which  he  had  devised  for  steering  the  ship  himself, 
superintended  the  work,  and  succeeded  in  remedying 
the  difficulty,  so  that  the  vessel  was  brought  out  of  the 
trough  of  ihe  sea,  and  came  into  port  in  safety.  Ship- 
man,  J.,  held  that  these  services  were  extraordinary 
services,  for  which  the  court  would  award  salvage  com- 
pensation to  him.  The  vessel  was  valued  at  least  at 
$500,000.  The  time  occupied  in  rigging  the  libellant's 
apparatus  was  about  twenty-four  hours.  Held,  that  the 
case  is  novel,  and  but  little  light  can  be  obtained  from 
precedents  in  fixing  the  amount  of  compensation.  On 
the  whole  case  $15,000  was  awarded.  In  the  above- 
cited  case  of  Towle  v.  The  Great  Eastern,  the  cases 
of  The  Branston,  2  Hagg.  3,  and  The  Vrede,  1  Lush. 
322,  are  discussed. 

Passengers  and  crew,  in  extraordinary  cases  only,  may 
be  salvors.^ 

It  is  the  duty  of  passengers  to  contribute  to  the 
general  safety  in  the  event  of  a  common  peril  ;^  and 
they  are  not  allowed  to  claim  salvage  for  ordinary 
labor  performed  by  them;®  but  extraordinary  services 
entitle  them  to  salvage.* 

In  the  case  of  the  Barque  Mary  C.  Porter,  United 
States  District   Court,  District  of  South  Carolina,  Ma- 

1  The  Aroma  Mills,  2  Hughes,         «  The  Merrimac,  1  Ben.  205. 
40;  The  Wave,  2  Paine,  131.  *  Bond  v.  The   Cora,   2  Wash. 

8  Beane  v.  The  Mayurka,  2  Curt.  C.  C.  80;  Clayton  v.  The  Harmony, 

78.  1  Pet.  Adra.  70. 


SALVAGE.  69 

grath,  J.  (manuscript,  unreported),  it  is  said :  "  As  a 
passenger,  he  might  earn  salvage  (The  Waterloo,  1 
Blatchf.  &  Howl.  136;  The  Cora,  2  Wash.  C.C.  80)j 
for  the  compensation  which  the  law  affords  that  meri- 
torious service  is  not  a  perquisite  of  seafaring  men, 
but  may  be  earned  by  any  who  in  such  times  of  peril  as 
usually  call  for  the  energies  of  the  salvor  are  able  and 
willing  to  incur  the  danger  and  afford  the  relief"  And 
the  same  rule  applies  in  cases  of  prize.  The  Two  Friends, 
1  C.  Rob.  285. 

Skip-owner.  —  The  rewarding  of  meritorious  personal 
exertions  being  one  of  the  principal  grounds  upon 
■which  the  court  of  admiralty  gives  salvage  remunera- 
tion, it  follows,  as  a  general  rule,  that  no  one  can  sus- 
tain a  suit  for  salvage  who  was  not  personally  engaged 
in  the  service  which  formed  the  foundation  of  the 
claim.  Where  the  claimant  is  proved  to  have  done 
no  more  than  send  other  persons  to  assist  the  vessel, 
the  court  will  refuse  to  recognize  his  right  to  participate 
in  the  sum  which  it  awards.^ 

The  owner  of  a  vessel  whose  crew  renders  salvage 
assistance,  however,  stands  upon  a  different  footing. 
Although  he  may  not  have  been  actively  engaged  in 
the  undertaking,  and  may  have  incurred  no  personal 
risk  whatever,  yet  he  is  almost  invariably  entitled  to 
participate  in  any  salvage  that  may  be  awarded,  and 
to  sue  the  assisted  vessel  for  the  recovery  of  his  de- 
mand. It  has  been  held  that  where  the  salving  vessel 
has  either  been  diverted  from  her  proper  employ- 
ment, or  has  experienced  a  special  mischief,  occasioning 
to  the  owners  any  inconvenience  or  loss  for  which  an 


»  The  Vine,   2    Hagg.   1;  The    Watt,  2  Rob.  70;  The  Lively,  3 
Aquila,  1 C.  Rob.  37.    See  also  The    Rob.  64. 


60  ADMIRALTY  LAW. 

equitable  compensation  could  be  reasonably  claimed, 
he  was  entitled  to  salvage.^ 

So,  where  officers  or  men  have  left  her  for  the 
purpose  of  assisting  a  vessel  that  had  become  short- 
handed.^ 

0 

The  owner  is  entitled  to  share  in  the  reward,  even 
in  the  absence  of  any  danger.  The  fact  that  a  vessel 
has  been  detained  while  giving  assistance  to  the  dis- 
tressed vessel  is  in  itself  sufficient  to  support  the  claim 
of  the  owner  to  a  portion  of  the  salvage.^ 

When  the  underwriters  of  a  vessel  and  cargo  that  had 
been  abandoned  hired  another  vessel,  and  subsequently 
succeeded  in  saving  the  ship  and  cargo,  they  were  held 
entitled  to  sue  as  salvors,  being  looked  upon  as  the 
owners,  for  the  time  being,  of  the  hired  ship.* 

It  is  difficult  to  imagine  a  state  of  things  where  salvage 
assistance  is  rendered  on  the  high  seas,  in  which  the 
salving  vessel  has  not  incurred  a  risk,  disadvantage, 
or  delay  sufficient  to  sustain  a  salvage  claim  by  the 
owner ;  and  it  also  not  unfrequently  happens,  especially 
in  the  case  of  steamships,  that  the  vessel  is  the  princi- 
pal salvor. 

See  further,  on  the  subject,  title  Apportionment, 
'post. 

Where  the  vessel  assisting  and  the  vessel  receiving 
assistance  belong  to  the  same  owner,  no  salvage  remu- 
neration is  payable.  The  rule  has  been  held  to  apply 
where  the  vessel  saved,  although  not  the  property  of 

1  The  Vine,  uhi  supra ;  The  Swa.  286 ;  The  Sir  Ralph  Abercrom- 
Charlotte,  3  W.  Rob.  68,  72.  bie,  L.  R.  1  P.  C.  454;  The  Norden, 

2  The  Janet  Mitchell,  Swa.  Ill;    1  Spinks,  185. 

The    Nicolina,    2    W.    Rob.    175.         »  The   Norden,  uhi  supra;   The 

See  also,  as  to  the  right  of  owners  Haidee,  1  Notes  of  Cases,  594. 
to  participate.  The  Martin  Luther,  *  The  Pickwick,  6  Jur.  669. 
Swa.  287;  The  Spirit  of  the  Age, 


SALVAGE.  61 

the  salving  vessel,  was  chartered  by  him  under  a  con- 
tract wliich  stipulated  that  he  should  provide  and  pay 
the  master  and  crew.^ 

If,  however,  the  possession  of  the  chartered  vessel 
continued  in  her  owner,  and  did  not  pass  to  the 
charterer,  as  has  been  held  to  be  the  case  where  the 
contract  stipulated  that  the  owner  should  appoint 
the  master  and  crew,  find  ship  stores,  and  pay  crew's 
wages,  salvage  will  be  payable  as  in  other  cases.  The 
circumstance  may,  however,  affect  the  quantum  to  be 
awarded.^ 

Associated  Vessels.  —  Where  vessels  sail  together  un- 
der an  agreement  to  render  mutual  assistance,  no  sal- 
vage remuneration  is  payable  for  any  services  which 
one  of  them  may  render  to  the  other.^ 

Such  an  agreement  must,  however,  be  clearly  estab- 
lished.* 

Where  vessels  proceed  on  the  same  voyage,  leaving 
port  nearly  together,  and  assistance  is  rendered  by  one 
to  the  other,  without  deviation  from  her  proper  course, 
the  association  of  the  vessels  affords  no  answer  to  a 
claim  for  salvage,  although  it  would  affect  the  amount 
of  remuneration,  which,  in  such  a  case,  would  not  be 
considerable.^ 

The  fact  that  a  part  owner  of  the  salving  vessel  has 
also  an  interest  in  the  vessel  salved  does  not  disentitle 
his  co-owners  to  sue  for  salvage.  They  must,  however, 
deduct  from  the  value  of  the  entire  service  the  share 

»  The  Maria  Jane,   14  Jur.  587.  The   Harriot,  1  W.  Rob.  4.39;   The 

See  The  Alfan,  Swa.  189.  Red   Rover,  3  W.   Rob.  1.50;  The 

2  The  Collier.  L.  R.  1  Adm.  83;  African,  1  Spinks,  29.9;   The  Gra- 

The  Waterloo,  2  Dods.  433.  vina,  Pritch.  Dig.  811;  The   T.  P. 

•  The  Zephyr,  2  Ilagg.  43.  Leathers,  Newb.  421. 

*  The  Waterloo,  2  Dods.  433-  «  The  Ganges,  1  Notes  of  Cases, 
436.  See  also  The  Margaret,  2  Hagg.  87-90;  The  Two  Friends,  8  Jur. 
48;  The   Swan,  1  W.  Rob.  68,  n. ;  1011. 


62  ADMIRALTY  LAW. 

which  would  have  been  due  to  the  part  owner  if  he 
could  have  joined  as  plaintiff.^ 

Where  the  salvors  get  to  the  vessel  in  distress  by 
means  of  boats  belonging  to  a  person  who  does  not 
personally  assist  in  the  undertaking,  the  mere  circum- 
stance that  his  boats  enabled  the  salvors  to  render  the 
required  assistance  does  not  entitle  the  boat  owner  to 
sue  as  a  salvor ;  and  where  the  crew  of  a  stranded  ves- 
sel, having  taken  to  their  boats,  and,  in  making  for  the 
nearest  land,  fell  in  with  and  succeeded  in  saving  a 
ship  that  had  been  abandoned,  a  claim  by  the  owner 
for  salvage,  on  the  ground  that  the  salvors  were  ena- 
bled to  reach  the  vessel  solely  by  means  of  his  boats, 
sails,  and  compass,  was  rejected.'^ 

But  the  Supreme  Court  of  New  York,  in  1860,  held 
that  a  salvor  who  takes  no  part  in  the  salvage  service 
other  than  to  furnish  a  boat  is  fully  compensated  by 
receiving  the  value  of  his  boat.® 

The  court,  however,  has  allowed  a  person  who  sent 
his  boats  to  render  salvage  services  a  sum  out  of  the 
salvage  awarded,  by  way  of  equitable  compensation,  for 
the  use  of  the  boats.* 

Owner  of  Cargo.  —  There  does  not  appear  to  be  any 
case  in  the  English  courts  of  a  claim  by  the  owners  of 
cargo  on  board  the  salving  vessel  to  participate  in  the 
salvage  awarded.  There  are  a  few  such  cases  in  the 
American  reports. 

In  the  case  of  Bond  v.  The  Cora,  2  Peters  Admiralty 
Decisions,  361,  confirmed,  on  appeal,  by  Washington, 
Ct.  J.,  2  Wash.  C.  C.  80,  the  owner  of  the  cargo  on 

1  The  Caroline,!  Lush.  334.  And         *  The  Two  Friends,  2  W.  Rob. 

see   The    Glengaber,   3   Law  Rep.  349. 

Adm.  &  Ecc.  534,  where  some  were         '  Hawkins  t?.   Andy,   32  Barb, 

owners  of  the  vessel  causing  the  551, 
mischief.  *  The  Charlotte,  3  W.  Rob.  68. 


SALVAGE.  63 

board  the  salving  vessel  joined  in  the  salvage  suit; 
but  the  claim  was  dismissed  with  costs.  (This  case 
occupies  twenty-two  pages  in  2  Peters.) 

In  the  case  of  The  Ship  Nathaniel  Hooper,  3  Sumn. 
642,  Story,  J.,  in  the  First  Circuit,  after  deciding  on 
principle  that  the  shipper  of  cargo  is  not  entitled  to 
salvage  earned  in  the  voyage,  unless  the  stoppage  and 
deviation  were  authorized  by  him,  proceeds,  at  page 
580,  as  follows :  "  Thus  far  the  point  has  been  con- 
sidered on  principle.  But  how  stands  the  case  upon 
practice  and  authority  ?  In  the  first  place,  although 
the  case  must  be  of  frequent  occurrence  in  suits  for 
salvage,  yet  it  does  not  appear  that  any  such  gen- 
eral claim  has  ever  been  allowed  in  practice  or  by 
courts  of  justice."  And  Judge  Story  commerids  the 
decision  in  Bond  v.  The  Cora,  iibi  supra. 

In  the  case  of  The  Blaireau,  2  Cranch,  240,  the  owners 
of  the  cargo  on  board  the  salving  vessel  were  awarded 
a  proportion  of  the  salvage ;  but  in  that  case  one  of  the 
owners  consented  to  the  salvage  service  being  per- 
formed, and  the  court  seems  to  have  considered  that 
his  acts  went  so  far  as  to  charge  himself  and  his  co- 
owners  with  the  hazards  to  be  encountered  by  the 
cargo.  See  the  opinion  of  the  court  delivered  by 
Marshall,  C.  J.,  on  page  269  of  2  Cranch. 

The  American  law  as  to  the  right  of  ship-owners  to 
sue  for  salvage  differs  in  no  way  from  that  of  England. 
This  will  appear  from  the  following  cases :  — 

The  owners  of  vessels  whose  crews  perform  salvage 
services  share  the  salvage  compensation,^  although  not 
present  when  the  service  was   performed,'*   solely  on 

1  The  Ottawa.  1  Tx)w.  274;  The    8  Wall.  448;  The  Charles,  Newb. 
Saragossa,!  Den.  553;  The  Charles    313. 
Henry,  1   Ben.  8;  The  Camanche,         *  The  Charles  Henry,  1  Ben.  8; 


64 


ADMIRALTY  LAW. 


the  ground  of  the  risk  and  damage  to  which  their 
property  is  or  may  be  subjected.^  This  applies  to 
owners  of  ships  or  vessels,  whether  propelled  by  steam 
or  otherwise,^  and  whether  they  be  individuals  or 
corporations.^ 

So  as  to  owner  of  wrecking  vessels.* 

Under  ordinary  circumstances,  they  are  allowed  one- 
third  of  the  amount  awarded  as  salvage  compensa- 
tion; but  where  the  service  was  of  a  character  to 
expose  the  vessel  to  a  peculiar  danger,  especially  in 
case  of  a  large  steamer  and  of  great  value,  more  may 
be  allowed.^ 

One-half  has  been  awarded  to  the  owners  of  a 
steamer,  the  usual  proportion  for  sailing-vessels  being 
one-third ;  ^  and  two-thirds  has  been  allowed.'^ 


The  Camanche,  8  Wall.  448.  Con- 
tra, The  Morning  Star,  6  Blatchf. 
154;  The  Jack  Jewett,  2  Ben.  463; 
The  Arlington,  2  Ben.  511. 

1  The  Camanche,  8  Wall.  473; 
Mason  v.  The  Bhiireau,  2  Cranch, 
269 ;  The  Henry  Ewbank,  1  Sumn. 
400. 

2  Waterbury  v.  Myrick,  Blatchf. 
&  H.  34;  Mason  v.  The  Blaireau, 
2  Cranch,  240;  McDonough  r.  Dan- 
nery,  3  Dall.  188:  Bond  v.  The  Cora, 
2  Wash.  C.  C.  80. 

8  The  Camanche,  8  Wall.  475. 

*  The  Aroma  Mills,  2  Hughes, 
41;  The  Camanche,  8  Wall.  475; 
The  Blackwall,  10  Wall.  1. 

6  The  Camanche,  8  Wall.  473; 
The  Rising  Sun,  1  Ware,  378 ;  The 
Waterloo,  Blatchf.  &  H.  114;  The 
Nathaniel  Hooper,  3  Sumn.  542; 
TheT.  P.  Leathers,  Newb.  430;  The 
Henry  Ewbank,  1  Sumn.  427; 
Conckling  v.  The  Harmony,  1  Pet. 
Adm.  34;  Bond  v.  The  Cora,  2 
Wash.  C.  C.  80;  Mason  v.  The  Ship 
Blaireau,  2  Cranch,  240;   The  Bos- 


ton, 1    Sumn.  328;    The  Hudson, 
Olcott,    396;    The   Cumberland,   1 
Sumn.  427;  The  Saragossa,  1  Ben. 
559;  The  Charles  Henry,  1  Ben.  12 
The  Waterloo,  Blatchf.  &   H.  124 
Union    F.    Co.    v.    The    Delphos 
Newb.  421 ;  The  Charles,  Newb.  429 
And  see  The   Camanche,   8   Wall 
475;   Cromwell  v.  The  Island  City 
1  Cliff.  221 ;   The  Caroline,  6  Am 
Law  Reg.  222;  Brooks  v.  The  Will 
iam  Penn,  1  Am.   Law  Reg.  484 
Norris  v.  The  Lsland  City,  1  Cliff. 
219;  Adams  v.  The  Island  City,  1 
Cliff.  210;  TheOmer,  2  Hughes,  96. 

^  The  Saragossa,  1  Ben.  559; 
Mason  i'.  The  Blaireau,  2  Cranch, 
240;  The  Henry  Ev\bauk,  1  Sumn. 
427. 

'  The  Waterloo,  Blatchf.  &  H. 
134;  Bond  v.  The  Cora,  2  Wash. 
C.  C.  80.  To  The  New  Harbor  Pro« 
tection  Co.,  using  gas  as  well  as 
water  and  steam,  the  District  Court, 
Louisiana,  Billings,  J.,  allowed 
three- fourths  (cases  not  reported), 
and  one-fourth  to  the  crew. 


SALVAGE.  65 

The  rule  allowing  Sialvage  compensation  to  owners  is 
applicable  to  corporations  owning  vessels  engaged  in 
salvage  services.^ 

Pilots.  —  Pilots  being  bound  by  the  nature  of  their 
employment  to  be  always  ready  to  go  out  to  ves- 
sels requiring  their  assistance, —  unless  it  be  at  the 
risk  of  their  lives, — cannot,  in  the  absence  of  ex- 
ceptional circumstances,  entitle  themselves  to  sal- 
vage by  what  they  may  do  in  the  course  of  their 
duty.2 

No  pilot,  however,  is  bound  to  go  on  board  a  vessel 
in  distress  to  render  pilotage  service  for  mere  pilotage 
reward.^ 

Pilots  have  consequently  been  held  entitled  to  sal- 
vage reward  for  going  out  to  ships  in  a  leaky  condition, 
and  rendering  assistance  in  working  the  pumps,  and  in 
laying  out  and  afterwards  shipping  or  recovering  an 
anchor ;  *  and  for  boarding  in  boisterous  weather  and 
bringing  into  a  place  of  safety  a  foreign  vessel  that 
had  sustained  damage.* 

In  extraordinary  cases  it  may  be  difficult  to  distin- 
guish a  case  of  pilotage  from  a  case  of  salvage,  prop- 
erly so  called ;  for  it  is  possible  that  the  safe  conduct 
of  a  ship  into  port,  under  circumstances  of  extreme 


1  The  Camanche,  8  "Wall.  474;  The  Jonpe  Andries,  Swa.  228-229; 

The  Blackwall,  10  Wall.  18;  Aflams  The  Galatea,  Swa.  349;   The  King 

r.  The  Island  City,  1  Cliif.  210;  The  Oscar,  6  Not€.s  of  Cases,  284;   The 

New  Harbor  Protection  Co.  r.  The  Elizabeth,  8  Jiir.  365. 
Suliote,  Ix)uisiana    Circuit    Court,         *  The  Hebe,  2  W.  Rob.  246. 
Bradley,    Associate    Justice,     and         •  The  King  Oscar,  6   Notes  of 

other  cases  instituted  by  the  same  Cases,  284.  See  also  The  Enterprise, 

corporation    in   the  Louisiana  dis-  2  Hagg.  178,  n.;  Newman  v.  Wal- 

trict,  Billings,  J.  (all  unreported).  ters,  3  Bos.  &  P.  612-616.     But  see 

*  The  Roshaugh,  1  Spinks,  267;  The  Johannes,  6  Notes  of  Cases, 

The  (Jeneral   Palmer,  2  Hagg.  176;  288,   where  a   pilot   unsuccessfully 

The  Joseph  Harvey,  1  C.  Rob.  306.  attempted    to    obtain    salvage    for 

«  The  Frederick,  1  W.  Rob.  16 ;  piloting  a  foreign  vessel. 

5 


66  ADMIRALTY  LAW. 

danger  and  personal  exertion,  may  exalt  a  pilotage 
service  into  something  of  a  salvage  service ;  ^  as  in 
cases  of  extraordinary  peril,  and  the  exercise  of  gal- 
lantry beyond  the  limits  of  their  duty.^ 

The  circumstances  must  be  such  as  require  efforts, 
perils  to  be  encountered,  labor  and  skill,  out  of  the  line 
of  their  duty.^ 

Regularly  authorized  and  licensed  pilots  are  entitled 
to  compensation  for  salvage,  where  their  services  are 
extraordinary,  and  beyond  the  strict  line  of  their  pro- 
fessional duty.* 

A  pilot  is  entitled  to  salvage  if  he  renders  assistance 
to  a  vessel  in  distress.® 

By  the  general  maritime  law  a  pilot  is  not  bound  to 
give  his  services  to  a  vessel  disabled  and  in  distress, 
for  mere  pilotage.^ 

In  the  event  of  a  dispute  as  to  whether  a  signal 
hoisted  was  for  a  pilot,  or  was  a  signal  of  distress,  the 

1  The  Wave,  Blatchf.  &  H.  243;  240;  Phillips  v.  McCall,  4  Wash. 
The  Joseph    Harvey,    1    C.    Rob.     C.  C.  148. 

257;  The   Eleanor,  6  C.  Rob.   39;  «  Hope  v.  The   Dido,   2  Paine, 

The  Benjamin  Franklin,  6  C.  Rob,  246 ;  Hobart  v.  Drogan,  10  Pet.  108; 

350;   The   Nelson,   1    Hagg.    Adm.  Lea  r.  Alexander,  2  Paine,  470;  The 

169;  Handy.  The  Elvira,  Gilp.  60;  Joseph    Harvey,    1    C.    Rob.    257; 

Dulany  v.  The  Peragio,  Bee,  212;  Le   Tigre,    3    Wash.    C.    C.    567; 

LeTigre,  3  Wash.  C.C.  567;  The  Dulany  r.  The  Peragio,   Bee,  212; 

Anne,   1  Mason,  508;  Lea  v.  The  Hand  v.  The  Elvira,  Gilp.  60. 

Alexander,  2  Paine,  470;  The  Two  *  Bean    r.    The    Grace    Brown, 

Catherines,  2  Mason,  336;  Newman  2  Hughes,  112. 

V.  Walters,  3  Bos.  &  P.  612;  Hobart  »  The  Liberty,  Adm.  Ct.,  April 

V.  Drogan,  10  Pet.  123:  The  Aroma  19,  1856,  Shipping  Gazette. 

Mills,   2   Hughes,   40;    The   Grace  «  The   Susan,   1    Sprague,   501; 

Brown,  2  Hughes,  112;  The  Salacia,  8.  c.  12  Law  Rep.  n.  s.  531;  The 

2  Hagg.  Adm.  270.  Hebe,  2  W.  Rob.  146,  247;  Flanders 

2  The  Centurion,  1  Ware,  481;  v.  Tripp,  2  I^w.  15;  The  Frederick, 
The  Joseph  Harvey,  1  C.  Rob.  257;  1  W.  Rob.  16;  Hobart  v.  Drogan, 
Le  Tigre,  3  Wash.  C.  C.  567;  10  Pet.  108;  The  Wave  v.  Hyer, 
Hobart  i;.  Drogan,  10  Pet.  108;  The  2  Paine,  131;  Hope  v.  The  Dido, 
Two  Catherines,  2  Mason.  319;  2  Paine,  213;  Lea  t?.  The  Alexander, 
Mason  v.  The  Blaireau,  2  Cranch,  2  Paine,  466;  The  Jonge   Andvies, 


SALVAGE.  67 

court  will  determine  the  fact  by  reference  to  the  state 
of  the  vessel  at  the  time.^ 

The  true  questions  in  such  cases  are,  What  was 
the  condition  of  the  ship?  Was  she  in  distress?* 
And  where  the  vessel  is  damaged  and  in  a  certain  de- 
gree of  distress,  the  court  has  uniformly  held  a  signal 
exhibited  under  such  circumstances  to  be  a  signal  for 
assistance,  and  not  for  a  pilot.^ 

If  a  signal  is  given,  and  persons  go  out  to  render 
assistance,  their  services  cannot  be  rejected  as  unneces- 
sary.* 

The  going  to  the  ship  is  a  part  of  the  service,  as 
much  as  the  labor  after  arrival.^ 

In  1  Sprague,  502  and  503,  Sprague,  J.,  said  :  "I  hold 
with  Dr.  Lushington,  that  a  signal  made  by  a  vessel  in 
actual  distress,  and  needing  other  assistance  than  pilot- 
age, although  it  be  the  usual  signal  for  a  pilot,  shall  be 
deemed  a  signal  for  assistance."  "A  signal  of  distress 
is  a  request  for  assistance.  And  if  competent  persons, 
upon  such  request,  subject  themselves  to  labor,  and 
danger,  and  expense,  to  get  on  board  of  the  vessel, 
and  there  offer  their  services  for  such  reward  as  the 
law  will  give  them,  if  such  offer  be  rejected  it  would 
seem  that  some  compensation  should  be  made  for  the 
labor,    expense,   and  danger  so  incurred  ;  at  least  in 

Swa.  226;    8.  c.  11  Moore   P.    C.  «  The  Otto   Hermann,  ,33  L.  J. 

313;  The  Richmond,  3  Hagg.  Adm.  N.  8.   Adm.  189,    190;   The   Felix, 

431 ;      Love     v.     Hinckley,     Abb.  1  Spinks,  23,  n. 

Adm.   436;   Hand  v.   The    Elvira,  *  The   Williams,    Brown    Adm. 

Gilp.  60;    The   Anders  Knafe,   L.  225;  The   Susan,   1  Sprague,  499; 

R.  Probate  Division,  vol.  iv.  (1879),  The  Undaunted,  Lush.  90. 

213.  «  The    Williams,   Brown    Adm. 

1  The  Hedging,  1  Spinks,  19,  93,  218;   The   White   Star,    Law   Rep. 

n.;  The  Dosseiter,  lOJur.  86.5,  808;  1  Adm.    &  E.    68;     The    Banner, 

The  Little  Joe,  Lush.  88;   The  Brig  14  Law   Rep.    465;    The   Su.<«an,  1 

Susan,  1  Sprague,  499.  Sprague,  499.    And  see  The  Graces, 

«  The  Bomarsund,  1  Lush.  77,78.  2  W.  Rob.  294,  300. 


68  ADMIRALTY  LAW. 

cases  where  the  vessel  subsequently  comes  to  a  place 
of  safety."  Vessel  and  cargo  worth  $5,000 ;  salvage, 
$250  and  costs. 

In  2  Sprague,  101,  the  court  said  :  "  The  master  of 
the  brig  testifies  that  he  made  the  usual  signal  for 
steam  only  and  did  not  set  a  signal  of  distress ;  and  it 
is  argued  that  he  had  a  right  to  choose  whether  to 
accept  a  salvage  service  or  not.  This  is  true.  But  when 
a  vessel  is  in  a  condition  to  have  a  salvage  service  done 
to  her,  and  the  master  makes  a  signal  for  a  steamer,  it 
is  considered  as  a  signal  for  assistance. 

A  service  which  would  be  pilotage  in  the  case  of  a 
duly  licensed  pilot,  may  become  salvage  when  rendered 
by  persons  under  no  obligation  to  perform  it.^ 

It  was  formerly  held  that  persons  assuming  the  char- 
acter and  duties  of  pilots  were  entitled  to  be  remuner- 
ated only  as  pilots  and  not  as  salvors.^ 

That,  however,  can  no  longer  be  regarded  as  the 
state  of  the  law. 

A  bar-keeper  decreed  to  share  with  the  crew  as  sal- 
vor, that  is,  to  rank  as  an  ordinary  hand.* 

Where  a  steamer  is  engaged  to  render  towage  ser- 
vices to  a  vessel,  she  is  bound  by  her  agreement  to  do 
all  that  is  necessary  to  facilitate  the  safe  voyage  of  the 
vessel.  She  is  to  take  the  chance  of  bad  weather  which 
may  occasion  delay  and  inconvenience,  and  for  her  ser- 
vices in  this  respect  she  is  entitled  only  to  towage  re- 
muneration.* 


1  The  Rosehaugh,  1  Spiiiks,  267.  *  Adams  v.  Steamer  Natchez  and 
See  also  The  Dygden,  1  Notes  of  Cargo,  by  Billings,  J.,  Eastern  Dis- 
eases, 115;  The  Eugene,  3  Notes  of  trict  of  Louisiana,  March,  1881 
Cases,  430.  (unreported). 

2  See  The  Columbus,  2  Hagg.  *  The  Galatea,  Swa.  349.  See 
178,  n.;  The  Funchal  Baptista,  also  The  Lady  Egidia,  Lush.  513; 
3  Hagg.  386,  n.  The  Arthur,  6  L.  T.  n.  s.  556. 


SALVAGE.  69 

The  state  of  the  wind  and  weather  at  the  time  the 
agreement  is  entered  into  is,  however,  to  be  taken  into 
consideration  in  determining  the  actual  nature  of  the 
obligation  which  is  undertal^en.^ 

The  law  upon  this  subject  was  most  fully  discussed 
in  the  case  of  The  Minnehaha,  both  in  the  court  of 
admiralty  and  on  appeal ;  and  it  was  laid  down  in  the 
judgment  of  the  Judicial  Committee  of  the  Privy 
Council.'* 

The  law  is  that  the  tug's  engagement  is  not  a  war- 
ranty to  tow  to  destination,  but  an  engagement  to  use 
best  endeavors ;  that  if  vis  major  renders  further  per- 
formance impossible,  the  tug's  obligation  terminates ; 
that  unforeseen  dangers  happening  to  the  ship,  the 
tug  is  entitled  to  salvage  for  extra  services ;  that 
there  will  be  no  additional  reward  where  the  danger 
is  caused  by  misconduct,  negligence,  or  incapacity  of 
the  tug. 

In  illustration  of  the  principle  as  to  the  right  of  the 
tug  to  extra  remuneration  for  extraordinary  services, 
see  The  Minnehaha,  ubi  supra ;  The  Albion,  Lush. 
282 ;  The  Saratoga,  Lush.  318  ;  The  Annapolis,  Lush. 
355. 

It  is  not  necessary,  to  entitle  a  tug  to  salvage  in- 
stead of  towage  remuneration,  that  she  should  have 
undergone  any  risk  in  rendering  the  extraordinary 
services.* 

If  after  a  towage  agreement  is  made,  but  before  the 
tug  has  commenced  the  performance  of  her  task,  an 
accident  should  happen  to  the  vessel  about  to  be  towed, 

1  The  White  Star,  L.  R.  1  Adm.  «  The  Minnehaha,  Lush.  835- 
68.    See  also  The  EUora,  Lush.  550,    347. 

and  The  Galatea,  Swa.  349.  •  The  Pericles,  Brown  &  Lush. 

80,  8L 


70  ADMIRALTY  LAW. 

and  the  tug  renders  salvage  assistance,  she  will  be 
entitled  to  salvage  reward  for  those  services.^ 

In  the  absence  of  any  agreement,  towage  service 
for  towage  remuneration  ordinarily  applies  only  to 
cases  when  the  vessel  receiving  the  assistance  is  unin- 
jured.^ 

A  low  rate  of  salvage  should  be  allowed  where  the 
salvors  in  good  weather  simply  towed  a  vessel  disabled, 
but  in  no  immediate  danger,  a  distance  of  thirty  miles 
to  a  safe  anchorage,  but  incurred  no  risk  of  life  or 
property,  and  no  deviation  from  their  ordinary  pur- 
suits.^ 

In  The  Charles  Adolphe,  Swa.  153-157,  Dr.  Lushing- 
ton  says :  "  With  regard  to  the  claim  of  the  steamship, 
she  performs  a  service  to  a  vessel  disabled  and  in  dis- 
tress, and  taking  her  in  tow  cannot  by  possibility  be 
compared  to  an  ordinary  towage  service."  See  also 
The  Ellora,  Lush.  550;  The  Batavier,  1  Spinks,  169. 

Service  rendered  by  a  steamer,  in  the  course  of  its 
regular  pursuit,  in  towing  and  relieving  a  vessel,  under 
circumstances  of  no  unusual  danger  to  life  or  property, 
and  without  the  exercise  of  unusual  activity,  enter- 
prise, or  heroism,  should  not  be  regarded  as  meriting 
a  reward  out  of  all  relation  and  proportion  to  what 
would  have  been  accepted  upon  a  contract  contingent 
upon  success.* 

Steamers  have  been  held  entitled  to  mere  towage, 
the  vessel  towed  being  in  no  danger.^ 

1  The  William  Brandt,  2  Notes  The  H.  B.  Foster,  Abb.  Adm. 
of  Cases,  Supp.  67.  235.    See  P.  P.  M.  &  W.  Co.  v.  The 

2  The  Reward,  1  W.  Rob.  174-  Steamboat  PL  C.  Yeager,  1  Fed. 
177.  Rep.  285  i  Mayo  v.  Clark,  1   Fed. 

*  The  Bolivar  v.  The  Chalmette,  Rep.   735 ;    Corwiii   v.   The  Barge 
1  Woods,  397,  by  Bradley,  Circuit  Jonathan  Chase,  2  Fed.  Rep.  268. 
Justice.  6  The  Princess  Alice,  3  W.  Rob. 

*  The    Birdie,  7    Blatchf.  243;  138;  The  Harbinger,  16  Jur.  729; 


SALVAGE.  71 

The  concealment  from  the  tug,  by  the  master  of  the 
vessel  to  be  towed,  of  her  damaged  condition,  may  en- 
title the  tug  to  repudiate  the  towage  agreement,  and  to 
sue  for  salvage,^ 

To  sustain  the  repudiation  of  the  agreement,  there 
must  have  been  a  deliberate  concealment  of  circum- 
stiinces  important  in  themselves,  and  of  such  a  nature 
as  to  operate  to  the  injury  of  the  owners  of  the  tug  in 
the  performance  of  her  task.^ 

And  where  the  owners  and  crew  of  a  tug  alleged  the 
agreement  for  towage  invalid  by  reason  of  the  fact  of 
the  illness  of  a  great  part  of  the  crew  of  the  vessel 
saved  having  been  withheld  from  them,  but  failed  to 
prove  that  the  property  had  been  in  any  danger,  the 
court  pronounced  for  the  agreement,  and  dismissed  the 
claim  with  costs.^ 

A  steam-tug  is  not  bound  to  take  a  vessel  in  tow,  at 
extraordinary  risk  to  herself  and  crew ;  and  if  she  do 
so,  it  is  a  salvage  service,  and  not  mere  towage.* 

Services  by  a  tug  engaged  in  the  wrecking  business 
are  salvage  services.^ 

Towing  may  be  a  salvage  service  when  performed  in 
aid  of  a  vessel  in  distress.* 

So  where  a  steam-vessel  has  lost  the  use  of  her  ma- 


The  Lady  Egidia,  Lush.  513;  The  Reward,    1    W.    Rob.    174 ;    The 

Galatea,  Swa.  349.  Charles  Adolphe,  Swa.  153. 

1  The  Kingalock,  1  Spinks,  283.  «  The  Birdie,  7  Blatchf.  238. 

a  The  Jonge  Andries,  Swa.  228.  •  The  H.  B.  Foster,  Abb.  Adra. 

«  The  Canova,  L.  R.  1  Ad.  54.  222;   s.  c.  6  N.  Y.  Leg.  Obs.  223; 

*  Roff  V.  Wass,  2   Sawyer,  394;  The  Reward,   1  W.  Rob.  176;  The 

The  Wave,  2  Paine,  131 ;  Blatchf.  &  Graces,  2   W.Rob.  294;  The  Meg 

H.  235;  The  Alexander,  Blatchf.  &  Merrilies,  3  Hagg.  Adm.  346;  The 

H.466;LeTigre,  3  Wash.  C.C.  567;  Jane,    2    Hagg.    Adm.    338;    The 

Hobart  v.  Drogan,  10  Pet.  108;  The  Traveller,  3  Hagg.  Adm.  370;   The 

Foster,     Abb.     Adm.     222;     The  Loudou  Merchant,  3  Hagg.  Adm. 

Emily  B.   Souder,  7  Blatchf.  555;  401. 
The  Charlotte,  3  W.  Rob.  08;  The 


72  ADMIRALTY  LAW. 

chinery,  although  she  is  sound  in  hull  and  masts,  and 
has  the  use  of  her  sails,  the  towing  is  a  salvage  service.^ 

In  the  case  of  the  Frank  A.  Hall,  United  States  Dis- 
trict Court,  District  of  South  Carolina,  Magrath,  J.  (not 
reported),  it  is  said  that  if  the  vessel,  though  disabled, 
is  manageable,  and  receives  assistance,  not  with  the 
purpose  of  being  saved  from  loss,  but  for  expedition, 
the  fact  of  being  disabled  will  not  of  itself  make  the. 
service  salvage. 

A  steam-tug  having,  through  her  own  fault,  set  a 
schooner  on  fire,  has  no  claim  for  salvage  for  putting 
the  fire  out.^ 

Assistance  rendered  by  a  steam-tug,  carrying  the  fire- 
department  engines,  in  extinguishing  a  fire  in  a  vessel 
lying  at  anchor  in  port,  is  a  salvage  service.^ 

Services  rendered  after  reaching  a  port  of  safety  in 
towage,  to  where  repairs  could  be  made,  are  towage, 
and  not  salvage  services.* 

Where  a  bark  laden  with  cotton,  and  anchored  out- 
side the  bar,  took  fire,  and  as  the  only  means  of  saving 
ship  and  cargo  she  was  towed  by  salvors  into  shallow 
water  and  filled  and  sunk,  and  her  hull  and  cargo  were 
afterwards  sold  in  that  condition,  —  it  was  held  that  the 
sum  which  they  brought  at  the  sale  was  the  measure  of 

^  The Saiagossa,  1  Ben.  551 ;  The  held  to  be  a  towage  service,  and  not 

Charles   Adolphe,  Swa.    153;    The  a  salvage  service). 
Reward,  1  W.  Rob.  177;  The  Char-         «  The  Prince  Albert,  5  Ben.  386; 

lotte,   3  W.  Rob.  71    (but  in  The  The  Ida,  4  Blat«hf.  31 ;   Cargo  ex 

Emily  B.  Souder,  15   Blatchf.   185,  Capella,  Law  Rep.  1  Adm.  &  E.  35G; 

before  Waite,   C.  J.,  Southern  Dis-  The  Robert   Dixon,  Probate  Divi- 

trict  of  New  York,  the  service  ren-  sion,  4  Law  Rep.  121  (1879). 
dered  in  this  case  by  a  steamer,  in         "  The   Blackwall,    10   Wall.    1 ; 

towing  another  steamer  which  had  The  Rosalie,  Spinks,  Ecc.  &  Adm. 

lost  the  use  of  her  steam-power,  but  ISo;   The  Eastern  Monarch,  Lush, 

which  was  otherwise  in  good  order,  81 ;  The  Tees,  Lush.  505. 
and  had  the  use  of  her  sails,  and         *  The  W.  F.  Garrison,  1   How. 

•was  not  in  danger  or  distress,  was  139. 


SALVAGE.  73 

the  salved  property,  and  that  salvage  should  be  allowed 
on  that  basis.^ 

Ship's  Agent  claiming  Salvage.  —  The  acceptance  of  an 
agency  for  the  ship  from  the  master  or  owner  does  not 
disqualify  the  agent  from  maintaining  a  suit  for  salvage, 
in  respect  of  any  service  of  that  nature  which  he  may 
render  during  the  course  of  his  employment.  Strictly 
speaking,  however,  sucli  services  are  to  be  regarded 
rather  in  the  light  of  a  meritorious  agency,  than  as 
salvage.* 

The  fact  that  the  claimant  acted  as  Lloyd's  agent  at 
the  port  where  the  services  were  rendered,  will  not  dis- 
entitle him  to  sue  for  salvage.^ 

If  a  magistrate,  acting  in  his  public  capacity,  should 
go  beyond  the  limits  of  his  official  duty  in  giving 
extraordinary  assistance,  he  is  entitled  to  salvage 
reward.* 

If  a  collector  or  other  revenue  officer,  intending  to 
act  iu  the  line  of  his  duty,  but  mistaking  the  law,  and 
transcending  his  authority,  is  the  meritorious  cause  of 
saving  property  to  the  owner,  he  is  not  precluded,  on 
account  of  the  motive  which  actuated  him,  from  claim- 
ing salvage.^ 

Officers  and  seamen  of  her  Majesty's  vessels,  who 
render  salvage  services  and  encounter  personal  risk, 
stand  on  the  same  footing  as  other  salvors.* 


»  Hayden    v.  The   Cochrane,  3  W.  Rob.  181.    But  see  The  Lively, 

Woods,  304.  3  W.  Rob.  64. 

»  The  Favorite,  2  W.  Rob.  255-         «  Tlie  Aquila,  1  C.  Rob.  37-46. 
259;  The  "Watt,  2  W.  Rob.  70.     See         «  Le  Tigre,  3  Wash.  C.  C.  567. 
The  Purissima  Concepcion,   3  W.         «  The  Wilsons,   1  W.  Rob.  172. 

Rob.  181,  182;  The  Happy  Return,  See  The  Alma,  1  Lush.  378;  The 

2IIagg.  198;  The  Cargo  ci  Honor,  Louisa,    1    Uods.   317;   The   Ewell 

L.  Rep.    1   Adra.   87;   The  Vesta,  Grove,  3  Hagg.  209;  The  Rosalie, 

4  L-ish  Jur.  219.  1  Spinks,  188;  The  Mary  Plea-sants, 

*  The  Purissima  Concepcion,  8  Swa.  224;  The  Thetis,  3  Hagg.  14; 


74  ADMIRALTY  LAW. 

The  American  law  cannot  be  said  to  differ  in  any 
material  respect  from  that  of  England  with  respect  to 
salvage  services  rendered  by  seamen  connected  with 
the  ships  of  war  of  the  United  States. 

The  American  courts  lean,  as  does  the  court  of  ad- 
miralty in  England,  against  salvage  claims  by  these 
vessels  where  the  services  have  been  slight  or  unim- 
portant.^ 

It  has  been  held  that  the  officers  and  crew  of  a 
foreign  vessel  of  war  are  entitled  to  claim  as  salvors.^ 

The  right  to  salvage  reward  is  what  the  law  calls  ^m* 
liqiddissimimi,  the  clearest  general  right  that  they  who 
have  saved  lives  and  property  at  sea  should  be  re- 
warded for  salutary  exertions ;  and  those  who  say 
that  they  are  not  bound  to  award,  ought  to  prove  their 
exemption  in  very  definite  terms,  and  by  arguments  of 
irresistible  cogency.^ 

Salvage  by  the  naval  marine  is  to  be  compensated  in 
like  manner  as  by  the  private  marine.* 

In  the  case  of  The  Steamship  Huntsville,  United 
States  District  Court,  District  of  South  Carolina,  Ma- 
grath,  J.  (not  reported),  the  court  held  that,  under  the 
circumstances  of  that  case,  the  second  libellants,  viz.  the 
Phoenix  Fire  Engine  Company  and  others,  were  entitled 
to  salvage  reward  for  their  services  in  extinguishing  the 
fire  on  the  "  Huntsville." 

The  opinion  is  very  elaborate,  and  I  am  unable  to  do 

The  Mary  Ann,  1  Hagg.  158;   The         «  Robson    v.    The    Huntress,    2 

Beaver,  3  C.  Rob.  292;  The  Lustre,  Wall.  Jr.  Rep.  59. 

3  Hagg.  154:  The  Iodine,  3  Notes         »  The   Waterloo,   2    Dods.   433; 

of  Cases,  140;  The  Charlotte  Wylie,  The  Sappho,  3  Law  Rep.  Adm.  &  E. 

5  Notes  of  Cases,  4;  The  Cargo  ex  147,  July  27,  1870. 

Woosung,   17  Moak,   559,   May  4,         *  Claim  of  Captain  of  The  Iris, 

1876.  5  Op.  Att.-Gea.  116  (Reverdy  John- 

1  The  Josephine,  2  Blatchf.  C.  C.  son). 
322,  Mr.  Justice  Nelson. 


SALVAGE.  76 

it  justice  by  any  abstract  consistent  with  my  desire  to 
produce  an  easily  portable  and  purchasable  book.  But, 
as  the  case  is  not  reported  elsewhere,  the  following 
comparatively  brief  statement  of  it  may  be  of  service. 

The  first  salvors  were  Davis  and  others,  owners  of 
the  *•'  Nina." 

They  rescued  the  vessel  from  stranding,  and  towed  her 
to  the  city  of  Charleston.  But  she  was  still  exposed  to 
a  greater  peril  than  that  from  which  they  had  relieved 
her,  viz.  that  of  fire.  The  testimony  establishes  that 
the  fire  was  the  greater  peril,  even  when  she  was  ashore. 

When  the  "  Huntsville  "  reached  the  city  of  Charles- 
ton, it  Avas  because  the  mayor  of  the  city  had  signified 
his  assent  to  the  application  made  to  him  for  that  pur- 
pose. He  had  signified  that  assent,  among  other  con- 
siderations, upon  the  express  condition  that  the  fire 
department  would  take  under  their  charge  the  burning 
vessel,  protect  from  the  danger  of  conflagration  adja- 
cent property  in  the  city,  and  surrender  all  claim  to 
compensation  from  the  city  for  the  services  they  might 
render. 

The  court  held  that  the  fire  department  did  not, 
because  of  the  introduction  of  that  vessel  under  the 
circumstances  of  the  case,  become  remitted  to  their 
specific  legal  duties ;  that  there  was,  for  all  the  pur- 
poses of  that  occasion,  by  mutual  consent,  a  suspension 
of  the  relation  which  existed  between  the  fire  depart- 
ment and  the  city  ;  that  the  claim  which  the  "  Hunts- 
ville "  did  present  was  to  be  allowed  the  opportunity 
of  being  saved,  not  that  the  city  of  Charleston  should 
pay  the  expense  of  saving  her.  It  was  not  the  aid  of 
the  city  treasury  she  needed.  The  court  also  held, 
that  had  the  "  Huntsville  "  been  moored,  without  some 
such  understanding  as  did  take  place,  then  would  a 


76  ADMIRALTY  LAW. 

fixed  legal  duty  have  been  devolved  upon  the  fire 
department,  and  a  fixed  legal  liability  by  the  city  of 
Charleston  would  have  arisen. 

From  these  and  other  considerations  set  forth  in  the 
decree  the  court  overruled  the  objection  made  to  the 
fire  department,  that  they  were  in  the  discharge  of  a 
prescribed  legal  duty  for  the  performance  of  which 
there  is  a  prescribed  legal  provision  for  its  discharge, 
and  that  this  prevents  them  from  making  the  claim  set 
up  by  them  in  that  court. 

It  was  also  objected  that  the  service  performed  by 
the  fire  department  was  not  in  its  nature  maritime ; 
that  it  cannot  be  considered  salvage,  and  therefore  not 
within  the  jurisdiction  of  the  court. 

But  Judge  McGrath  held  that  the  fact  that  the  ser- 
vice was  rendered  from  the  land  to  a  vessel  within  the 
admiralty  and  maritime  jurisdiction  of  the  courts  of 
the  United  States  is  not  sufficient  to  deprive  it  of  the 
character  of  salvage,  if  the  other  circumstances  necessary 
to  be  found  in  such  cases  also  exist. 

If  the  service  has  been  rendered  on  the  land  to  goods 
which  are  on  the  land,  but  which  have  been  saved  or 
brought  from  the  sea,  it  would  undoubtedly  be  a  case 
of  salvage.  The  Centurion,  1  Ware,  477.  In  cases 
called  mixed,  where  the  service  is  performed  partly 
on  tide- water  and  partly  on  the  shore,  jurisdiction  of 
such,  as  cases  of  salvage,  has  been  affirmed  by  the  Su- 
preme Court.  United  States  v.  Coombs,  12  Pet.  72 ; 
American  Insurance  Co.  v.  Canter,  1  Pet.  511.  That 
where  the  service  is  performed  wholly  on  the  shore,  in 
relation  to  goods  cast  ashore  from  a  wreck,  it  will  be 
regarded  as  a  salvage  service,  and  of  it  this  court  will 
entertain  jurisdiction,  was  held  in  the  case  of  Stephens 
V.  The  Ship  Argus,  Bee,  171. 


SALVAGE.  77 

It  was  the  continuation  and  completion  of  the  service 
commenced  by  the  first  libellants,  and  comes  directly 
within  that  class  of  mixed  cases,  the  jurisdiction  of 
which  has  been  declared  by  the  Supreme  Court  to  be 
rightfully  exercised  in  these  courts.  And  if  it  were 
not  so,  that  this  service  is  connected  with  that  rendered 
by  the  first  libellants,  but  is  considered  as  independent 
of  all  others,  it  would  yet  be  a  service  rendered  from 
the  land  to  a  vessel,  the  locality  of  which  was  within 
the  admiralty  and  maritime  jurisdiction  given  to  this 
court.  And  if  all  the  agencies  employed  were  on  the 
land,  yet  when  these  were  exercised  to  aflford  aid  to  a 
vessel  within  that  jurisdiction  which  belongs  to  this 
court,  there  is  no  principle  by  which  this  court  can 
refuse  to  recognize  it.  In  The  Aquila,  1  C.  Eob.  46, 
Sir  William  Scott  did  not  refuse  to  reco":nize  the  maji:- 
istrate  as  a  salvor,  because  the  service  which  he  claimed 
to  have  rendered  to  a  vessel  was  rendered  by  him  upon 
the  land,  but  because  it  was  precisely  what  he  was 
bound  to  do.  And  the  case  contains  a  very  clear  inti- 
mation, that  if  the  magistrate  had  done  more,  he  would 
or  might  have  been  rewarded  as  a  salvor. 

Section  IH.  —  DIFFERENT  SETS  OF  SALVORS. 

It  sometimes  happens  that  different  sets  of  salvors 
claim  remuneration  in  respect  of  the  same  service. 

The  decisions  in  such  cases  will  be  found  mainly  to 
depend  upon  whether  the  property  saved  was  or  was 
not  derelict  at  the  time  the  services  were  rendered  ; 
and  if  derelict,  whether  the  salvors  first  in  possession 
could,  unassisted,  have  completed  the  undertaking  upon 
which  they  had  entered. 

If  the  vessel  in  distress  has  not  been  abandoned  by 


78  ADMIRALTY  LAW. 

her  master  and  crew,  there  can  be  no  great  difficulty  in 
determining  which  set  of  salvors  will  be  recognized  by 
the  court.  The  master  of  the  vessel,  whilst  he  con- 
tinues on  board,  is  entitled  to  retain  the  command  and 
control  of  the  ship  and  cargo,  and  to  direct  the  work 
of  the  salvors,  who  are  little  more  than  assistants  and 
laborers  under  him.  lie  may  reject  the  help  of  per- 
sons whom  he  does  not  think  fit  to  employ,  and  those 
whom  he  does  employ  are  bound  to  obey  his  orders.^ 

If  other  salvors  dispossess  those  whom  the  master 
has  employed,  and  force  their  own  services  upon  him, 
the  court  will  refuse  to  award  them  any  remuner- 
ation.'^ 

Nor  is  the  master's  authority,  in  this  respect,  affected 
by  the  circumstance  that  he  and  his  crew  leave  the 
vessel  for  the  purpose  of  procuring  assistance.® 

Legal  Derelict.  —  Where  the  vessel  salved  is  a  derelict, 
then  the  salvors  who  are  first  in  possession,  if  capable 
of  saving  the  property,  are  entitled  to  complete  the 
salvage,  and  to  exclude  others  from  joining  in  it.* 

A  vessel  is  said  to  be  derelict,  in  the  sense  of  the 
maritime  law,  when  she  has  been  abandoned  at  sea  by 
her  master  and  crew,  without  any  hope  of  return- 
ing.^ 

If  the  master  and  crew  leave  her  temporarily,  with- 
out any  intention  of  final  abandonment,  but  with  the 
intention  of  returning  and  resuming  possession,  such  a 
vessel  is  not  to  be  considered  a  derelict,  nor  is  the  right 
of  possession  lost  by  such  temporary  absence,  although 

*  The  Dantzic  Packet,  3  Haf!;g.  1881,  Circuit  Court,  Louisiana  Dis- 

.383;  The  Champion,  B.  &  Lush.  69;  trict. 

The  Glasgow   Packet,  2   W.   Rob.  2  jhe  Fleece,  3  W.  Rob.  218. 

.306;  The   Martha,   Swa.  489;  The  »  The  Champion,  B.  &  L.  G9-71. 

Effort,  3  Hagg.  165 ;  The  Choteau,  *  The  Maria,  Edw.  175. 

Pardee,   J.    (not    reported),  June,  ^  The  Aquila,  1  C.  Rob.  37. 


SALVAGE.  79 

no  one  may  be  remaining  on  board  the  vessel  for  the 
purpose  of  retaining  possession.^ 

The  onus  of  proving  the  intention  to  return  rests 
upon  the  owner  of  the  vessel,  for,  prima  facie,  a  vessel 
found  at  sea  in  a  position  of  peril,  and  without  having 
any  one  on  board,  is  a  derelict.'* 

If  a  master  and  crew  leave  their  vessel  for  the  safety 
of  their  lives,  a  mere  intention  of  sending  a  steamer  to 
look  for  her  does  not  take  away  from  the  vessel  its  char- 
acter of  a  legal  derelict.^ 

Dr.  Lushington  said :  "  When  we  speak  of  the  spes 
recuperandi,  we  mean  the  hope  and  expectation  enter- 
tained by  the  master  and  crew  of  returning  to  their 
vessel;  not  what  was  the  precise  state  of  things,  but 
what  was  the  intention  by  which  they  were  actuated  at 
the  time."  * 

If,  at  the  time  the  vessel  is  left,  there  is  no  animus  or 
spes  either  way,  the  vessel  is  not  a  derelict.^ 

The  law  of  derelict  is  elaborately  reviewed  in  this 
case.  See  also  The  Fenix,  Swa.  13,  where  abandon- 
ment at  time  of  collision  was  held  not  to  constitute  a 
vessel  a  legal  derelict 

Where,  however,  a  vessel  in  a  collision  was  left 
abandoned  for  three  days,  she  was  held  to  be  a  legal 
derelict.® 

»  The   Clarisse,   Swa.  129.     See         »  The    Coromandel,    Swa.    205. 

also  The  Aquila,  1  C.  Rob.  37 ;  The  See  also  The  Gertrude,  30  L.  T. 

Bee,  Ware,  336;  Howe  v.  The   Brig  Adm.  130. 

,  1  Mason,  372 ;  Tyson  r.  Prior,  1         *  The   Sarah  Bell,   4   Xotes   of 

Gall.  133  ;  The  Island  City,  1  Black,  Cases,  144. 

121 ;  Williams  v.  The  Cargo  of  The         *  The  Cosnnopolitan,  6  Notes  of 

Adolphe,  10  Am.  Jur.  219 ;  The  Iler-  Cases,  Supp.  17. 

cules,  8  Irish  Jur.   412.     See   also         «  The    Pickwick,    16  Jur.   662, 

The    Fenwick,   Pritch.    Dig.   824;  676.     See    also    The    Livingstone, 

The  Mary.  Pritch.  Dig.  824.  Pritch.  Dig.  824. 

'  The  Cosmopolitan,  6  Notes  of 
Cases,  Supp.  17-19. 


80  ADMIRALTY  LAW. 

The  position  in  which  the  vessel  was  at  the  time  of 
abandonment  is  some  evidence  as  to  the  intention  of 
the  master  and  crew  at  the  time  of  leaving.^ 

Where  the  crew  of  a  vessel  were  drowned  after  they 
had  abandoned  her,  but  before  they  reached  the  shore, 
and  it  consequently  was  impossible  to  say  whether  they 
had  a  spes  reciiperandi  or  not,  Dr.  Lushington  held  that 
in  every  sense,  legal  or  otherwise,  the  vessel  was  to  be 
considered  a  derelict.^ 

A  ship  or  goods  sunk  in  the  sea  are  generally  dere- 
lict. They  are  not  so,  however,  as  long  as  the  owner 
continues  to  assert  his  claim,  and  does  not  give  up  the 
intention  of  resuming  the  possession.^ 

A  vessel  may  be  considered  a  derelict  so  far  as  the 
amount  of  the  salvors'  remuneration  is  concerned  ;  that 
is  to  say,  abandoned  sine  ammo  reciiperandi} 

Salvage,  as  in  the  case  of  a  derelict,  has  been 
awarded  even  where  the  abandonment  took  place  si- 
multaneously with  the  salvage  of  the  cargo.^ 

The  courts  of  the  United  States  have  acted  upon 
these  principles ;  and  as  regards  the  remuneration  of 
salvors  they  have  held  that  where  a  vessel  at  sea, 
though  not  abandoned,  has  on  board  only  persons  both 
physically  and  mentally  incapable  of  doing  anything 
for  their  safety,  this  constitutes  a  case  of  quasi  derelict, 
and  calls  for  a  liberal  compensation  to  salvors,  especially 
if  life  as  well  as  property  has  been  saved.* 

A  vessel  with  slaves  on  board,  but  no  white  person, 

1  The  Florence,  16  Jur.  572,  573.  3  Hag^.  14  ;  The  St.  Petersburg, 
See  The  Genessee,  12  Jur.  401.  Pritch.  Dig.  824 ;  The  Sophie,  Pritch. 

2  The  Minerva,  1    Spinks,  271.     Dig.  824. 

Also  L'Esperance,  1  Dods.  46;  The         *  The    Genessee,    12  Jur.    401, 

Berlin,  3  Irish  Jur.  n.  s.  34.  402. 

8  The  Barefoot,  14  Jur.  841;  The         «  The  Columbia,  3  Hagg.  428. 
Beaver,   3  C.Rob.  292;  The   Sam-         «  The  George Nicholaus,  1  Newb. 

uel,  15  Jur.  407.    See  The  Thetis,  449. 


SAXVAGE.  81 

was  considered  a  derelict,  and  one-third  given  to  the 
person  bringing  her  in.^ 

Where  the  master  and  crew  lefl  their  vessel  in  a 
sinking  condition,  and  were  picked  up  by  another 
vessel  while  yet  in  sight  of  the  wreck,  the  vessel  and 
cargo  thus  left  were  held  to  be  derelict.'' 

To  constitute  a  case  of  derelict,  the  thing  must  have 
been  finally  abandoned,  whether  from  accident,  from 
necessity,  or  voluntarily.' 

The  vessel  must  have  been  finally  abandoned,*  with- 
out hope  of  recovery,  or  without  the  intention  of 
returning  to  it.^  The  mere  quitting  of  the  ship  to  pro- 
cure assistance  from  the  shore,  and  with  intent  to  return, 
is  not  an  abandonment.^ 

The  true  rule  for  awarding  salvage  in  ca.ses  of  dere- 
lict is  this :  Divide  the  proceeds  which  remain  over  all 
costs  and  disbursements  of  the  salvage  suit  equally 
between  the  salvors  and  the  owners  of  the  res- 
cued property,  giving  to  each  of  these  interests  a 
moiety.^ 

»  Flinn  r.  Leander,  Bee,  260.  1  Sumn.  210;  The  Henry  Ewbank, 

«  The  Boston,  1  Sumn.  328.  1    Sumn.   400;    Cromwell    v.    The 

»  Rowe  V.  The  Brig ,  1  Mason,  Island  City,  1  Cliff.  224 ;  The  H.  B. 

872;  Tyson   v.   Prior,  1  Gall.  133;  Foster,  Abb.   Adm.  222;   Rowe  v. 

The  Jenny  Lind,  Newb.  449;  Mont-  The  Brig ,  1  Mason,  372;  The 

gomery    v.    The    T.    P.    leathers,  Attacapas,  3  AVare,  65;  Montgom- 

Newb.  421;  The   Ida  L.  Howard,  ery  r.  The  T.  P.  Leathers,    Newb. 

1  Low.  7;  The  John  Gilpin,  Olcott,  426;  The  Aquila,  1  C.  Rob.  .32;  Car- 

77;    The   Sarah    Bell,   4   Notes  of  roll  v.  The  T.  P.  Leathers,  Newb. 

Cases,  147.     And  see  Taylor  p.  The  433;   Flinn   p.  The   Leander.  Bee, 

Cato,  1  Pet.  Adm.   50,  distinguish-  260;  L'Esperance,  1  Dods.  46. 
ing  The  Aquila,  1  C.  Rob.  32.  «  Cromwell  v.  The  Island  City, 

«  Ty.son   v.  Prior,  1  Gall.    133;  1  Cliff.  224;  The  Bo.stnn,  1  Sumn. 

Rowe  r.  The   Brig ,  1  Mason,  328;  The    Beaver.  3   C.   Rob.   92; 

872;  The  Island  City,  1  Black,  121.  The  Barefoot,  1  Eng.  L.  &  E.  661; 

»  The  Bee,    1  Ware,    332;  The  The  Emulous,  1  Sumn.  210. 
Elizabeth  and  Jane,  1  Ware,  35;  Ty-         »  The  Cayenne,  Dist.  Ct.,  Di.st. 

son  V.  Prior,  1  Gall.  133;  The  Bos-  of  Delaware',  October  Term,  1870, 

ton,  1   Sumn.  328;  The  Emulous,  2  Abbott  U.  S.  R.  42. 

6 


82  ADMIRALTY  LAW. 

But  it  has  been  held  that  the  same  rules  should  be 
followed  in  cases  of  derelict  as  in  other  salvage  cases.^ 

First  Salvors  favored.  —  Assuming  the  vessel  to  be 
derelict  in  the  legal  sense  of  the  word,  as  laid  down  in 
the  foregoing  decisions,  and  in  the  possession  of  salvors 
competent  to  bring  her  into  a  position  of  safety,  the 
court  of  admiralty  will  protect  the  rights  of  such  first 
salvors  with  some  jealousy,  and  it  will  refuse  to  allow 
those  who,  without  sufficient  cause,  dispossess  them  to 
participate  in  the  salvage.^  The  Samuel,  15  Jur.  407  ; 
The  Queen  Mab,  3  Hagg.  242  ;  The  Glasgow  Packet, 
2  W.  Rob.  306  ;  The  Glory,  14  Jur.  676  ;  The  Ame- 
thyst, Daveis,  20.  See  also  A  Quantity  of  Iron,  2 
Sprague,  67. 

The  exclusion  of  second  salvors  is  to  be  cautiously 
applied.^ 

It  is  a  maxim,  common  to  the  jurisprudence  of  all 
countries,  that  no  one  is  permitted  to  profit  by  the 
labor  of  another,  without  compensating  him  for  it. 
Jure  naturce  cequum  est,  neminem  cum  alteniis  detrimento  et 
injuria  fieri  hcwpMior em.  On  this  principle,  the  Roman 
jurists  held,  that  he  who  acted  for  another  by  transact- 
ing his  business,  or  by  making  repairs  on  his  property, 
could  recover  the  amount  of  the  expenses  incurred,  or 
the  value  of  the  repairs ;  provided  the  acts  of  the 
negoiiorum  gestor  were  necessary  and  useful  to  the 
person  for  whom  he  acted. 

This  doctrine  has  descended  to  us,  and  makes  a  part 
of  the  positive  legislation  of  the  State   of  Louisiana. 

1  See  Post  V.  Jones,  19  How.  150.  Marv,  2  Wh.  123;  The  Brig  John 
Seealso4  Blatchf.  372;lLow.2,  91,  Gilpin.  Olcott,  77.  See  also  The 
143.  Eugenie,  3  Hagg.  156. 

2  The  Blendenhall,  1  Dods.  414,  »  The  Blendenhall,  uU  supra; 
418.  See  also  The  Fleece,  3  W.  The  Eugenie,  3  Hagg.  156;  The 
Bob.  278;   The  Charlotte,  2  Hatjg.  Pickwick,  16  Jur.  669,  670. 

361 ;  The  Clarisse,  Swa.  129 ;   The 


SALVAGE.  83 

Dig.  Liv.  50,  tit.  17,  L.  206  ;  Dig.  Liv.  3,  tit.  5,  L.  10 ; 
Toullier,  Droit  Civil  Franc^ais,  vol.  ii.  tit.  4,  cap.  1,  No.  49. 
It  is  in  consonance  with  the  established  principles  of 
maritime  law  to  hold  those  beginning  a  salvage  ser- 
vice, and  who  are  in  the  successful  prosecution  of  it,, 
entitled  to  be  regarded  as  the  meritorious  salvors  of 
whatever  is  preserved,  and  entitled  to  the  sole  posses- 
sion of  the  property.  1  Ld.  Raym.  393 ;  2  H.  Black. 
294  ;  8  East,  57  ;  1  Dods.  417  ;  2  Hagg.  361 ;  3  Hagg. 
160,  167,  243;  Edwards,  175.  And  the  same  would 
seem  to  follow,  even  if  they  have  been  wrongfully  in- 
terrupted or  intercepted  in  the  work  by  others,  who 
complete  the  salvage,  and  bring  in  the  salved  property. 
The  Brig  John  Gilpin,  Olcott,  86. 

Where  the  assistance  of  the  second  salvors  was  bene- 
ficial rather  than  absolutely  necessary,  they  have  been 
awarded  salvage.^ 

The  court,  although  it  protects  salvors  against  im- 
proper interference,  at  the  same  time  requires  them  to 
avail  themselves  of  further  assistance,  whilst  the  success 
of  their  efforts  remains  doubtful ;  and  where  they  im- 
properly refuse  that  assistance,  the  court  will  award  to 
them  a  less  sum  than  it  otherwise  would  have  given." 

Abandonment  hy  First  Salvors.  —  If  the  first  of  two  sets 
of  salvors  abandon  the  enterprise  without  any  intention 
of  resuming  it,  and  the  other  set  afterwards  enter 
upon  the  service,  and  bring  it  to  a  successful  issue,  they 
will  be  entitled  to  the  whole  salvage.' 

»  The  Charlotta,   2   Hagg.  361.  Elizabeth,  uA»  ««;jra ;  The  Gudrun, 

See  also  The  Berlin,  3  Irish  Jar.  34;  uhi  supra;   The  Dosseitei,  10  Jur. 

The  Gudrun,  5  Irish  Jur.  n.  8.  361;  865. 

The  Magdalen,  31   L.  T.  Adni.  22;         «  The  India,  1   W.    Rob.    406. 

The  Elizabeth,  8  Irish  Jur.  340.  See  also   The   Clarisse,   Swa.   129; 

»  The  Glory,  14  Jur.  676.     See  The  Cosmopolitan.  6  Notes  of  Cases, 

also    The   Berlin,    ubi  supra;  The  Supp.  17;  The  John  Wurts,  Olcott, 

Columbia,   Pritch.  Dig.  767  ;    The  469 


84  ADMIRALTY'  LAW. 

If,  however,  the  first  set  leave  the  vessel  for  the  pur- 
pose of  procuring  assistance,  and  without  the  intention 
of  abandoning  the  undertaking,  they  may  be  awarded 
salvage  for  anything  they  may  have  done  beneficial  to 
the  vessel,  or  which  might  have  rendered  the  salvage 
easier  or  more  practicable  to  those  who  subsequently 
complete  the  service.^ 

When  valuable  service  has  been  performed  which 
renders  the  final  saving  of  property  more  valuable  or 
easy,  continued  exertion  is  not  necessary  to  entitle  the 
original  salvors  to  a  portion  of  the  salvage  awarded.^ 

Where  a  tug-boat  and  the  river  salving-boat  both 
come  to  the  relief  of  a  steamer  on  fire  at  a  pier,  held, 
that  the  river  salving-boat,  by  throwing  water  on  the 
vessel  in  danger,  rendered  meritorious  service  and  of 
value  to  the  salved  vessel.^ 

Distribidion  between  Rival  Salvors.  —  It  has  been  held 
that  when  salvors  fall  into  distress,  and  are,  together 
with  the  salved  property,  saved  by  another  vessel,  the 
second  salvors  in  such  a  case  are  entitled  to  a  portion, 
but  not  the  whole,  of  the  salvage  reward.* 

And  in  this  case  Story,  J.,  held,  that  if  the  second 
salvors  make  it  a  condition  of  their  rendering  assistance 
that  the  first  set  shall  abandon  their  claims  to  salvage, 
such  a  bargain  would,  in  the  awarding  of  the  remuner- 
ation, be  disregarded  by  the  court. 

Where  there  are  different  sets  of  salvors  acting  inde- 


1  The  E.  U.,  1  Spinks,  63,  66;  1  Black,   121;   The  Underwriter,  4 

The  Genessee,    12  Jur.    401;    The  Blatchf.  C.  C.  94. 
Jonge  Bastiaan,  5  C.  Rob.  322.    See         ^  The  Tolomeo,  7  Fed.  Rep.  497 

also  The   Santipore,  1  Spinks,  231;  (1881). 

The  Magdalen,  31  L.  T.  22;  The         »  The  Key  West,  11  Fed.   Rep. 

Atlas,   Lush.   518;  The    Endeavor  911,  Nov.  25, 1881,  by  Pardee,  Ct.  J., 

(Colby  V.  Watson),  6  Notes  of  Cases,  reported  by  Joseph  P.  Hornor,  Esq., 

56;  The  Albion,  3  Hagg.  254;   The  of  the  New  Orleans  Bar. 
Brothers,  Bee,  136;  The  Island  City,         *  The  Ewbank,  1  Sumn.  400. 


SALVAGE.  85 

pendently  of  each  other,  the  misconduct  of  one  set  will 
not  affect  the  claims  of  the  other,  if  they  had  no  par- 
ticipation in  it.^ 

Where  salvage  was  claimed  by  one  set  of  salvors  for 
getting  a  vessel  off  the  sand,  and  by  another  for  get- 
ting up  her  anchors  (which  had  slipped)  after  she  was 
clear  of  the  sand,  the  court  held  that  the  salvors  of  the 
anchors  were  not  entitled  to  share  in  the  general  sal- 
vage of  the  vessel.^ 

For  instances  of  apportionment  between  different  sets 
of  salvors,  see  The  Santipore,  1  Spinks,  231 ;  The  Mag- 
dalen, 31  L.  T.  Adm.  22  ;  The  Pickwick,  16  Jur.  669  ; 
The  Jonge  Bastiaan,  5  C.  Rob.  323 ;  The  Genessee,  12 
Jur.  401.    See  also  title  Apportionment,  joos^. 

A  not  very  dissimilar  question  arose  in  the  case  of  A 
Box  of  Bullion,  1  Sprague,  57. 

Where  the  property  is  actually  saved,  and  more  than 
one  set  of  salvors  have  contributed  to  that  result,  all 
engaged  in  the  enterprise  who  materially  contributed 
to  the  saving  are  entitled  to  share  in  the  reward,  in 
proportion  to  the  nature,  duration,  risk,  and  value  of 
the  services  rendered  ;*  although  the  separate  service 
of  either  set  would  not  have  saved  the  property.* 

In  the  case  of  The  Ship  Liberty  and  Cargo,  in  the 
vice-admiralty  court  of  Nassau,  N.  P.  (Bahamas),  pam- 
phlet, November,  1860,  J.  C.  Lees,  judge  of  the  court, 
said :  "  i?  w  true  that,  in  awarding  salvage  remuneration,  I 
never  do  take  into  consideraiion  the  actual  number  of  vessels 
employed.  I  merely  give  such  sum  as  I  think  ivould  be  a  fair 
compensation  to  the  number  of  vessels  really  required." 

Rival  Salvors.  —  From  a  pamphlet  published  in  1861 

1  The  Neptune,  1  W.  Rob.  297.  Cliff.  219;  Dominy  v.  Anchors,  &c., 

«  ITie  Endeavor,  6  Notes  of  Cases,  1  Ben.  77 ;  The  Black  wall,  10  Wall.  1. 
56.  *  Adams   v.  The   Island   City,  1 

»  Norris  V.  The  Island  City,   1  CUff.  210;  aflarmed,  1  Black,  121. 


86  ADMIRALTY  LAW. 

I  extract  the  following,  from  a  decision  by  Judge  Mar- 
vin, of  the  District  Court  of  the  United  States,  South- 
ern District  of  Florida,  in  the  case  of  The  Ocean 
Belle.  This  decision  is  not  contained  in  Judge  Mar- 
vin's treatise  on  the  Law  of  Wreck  and  Salvage,  which 
was  published  in  1858. 

Five  smacks,  of  the  aggregate  burthen  of  188  tons,  and 
carrying  in  all  thirt3'-two  men,  arrived  at  the  ship  a  day 
after  the  eight  wrecking  vessels,  and  a  day  or  two  before  the 
steamer.  They  were  at  the  ship  tendering  their  services  at 
the  time  the  steamer  was  employed.  They  claim  that  they 
were  entitled  to  be  employed  before  the  steamer ;  that  they 
were  unjustly  excluded  from  rendering  salvage  services,  and 
are  equitably  entitled  to  a  distributive  share  of  the  salvage 
earned.  The  rule  of  the  High  Court  of  Admiralty  on  this 
subject  seems  to  be  that  all  persons  coming  up  together,  or 
about  the  same  time,  to  render  assistance  to  a  ship  in  distress, 
are  entitled  to  share  in  the  salvage,  although  a  part  only  are 
actually  employed.  The  Mountaineer,  2  W.  Rob.  7.  The 
rule  in  this  court  is  "  that  licensed  wrecking  vessels  are  en- 
titled to  be  admitted  to  assist  at  a  wreck  or  ship  in  distress 
in  the  order  in  which  they  arrive,  if  further  assistance  is 
needed,  unless  some  good  cause  exists  for  the  contrary ;  and 
the  master  of  any  wrecking  vessel,  deeming  his  vessel  and 
crew  excluded  without  sufficient  cause,  is  at  liberty  to  apply 
to  the  court,  by  petition,  for  a  distributive  share  of  the  sal- 
vage." This  rule  is  obviously  just  in  itself,  and  sound  in 
policy.  ...  It  is  to  be  observed,  however,  that  neither  the 
rule  nor  any  decision  of  the  court  interferes  with  the  right 
of  the  master  to  employ  one  wrecking  vessel  in  preference  to 
another.  Its  effect  is  to  protect  him  agaiijst  an  attempt  by 
any  wrecker  to  corrupt  him,  by  taking  away  the  inducement, 
and  he  is  left  ever}'^  way  free  to  employ  any  vessel  he  pleases. 
But  when  the  wreckers  come  before  the  court  to  recover  their 
salvage,  he  can  properh'  have  no  interest  beyond  the  amount 
to  be  decreed  for  the  whole  service.  With  the  distribution  of 
that  amount  among  the  salvors  he  has  no  concern.    If  no  im- 


SALVAGE.  87 

proper  influences  are  brought  to  bear  upon  him  he  will  ordi- 
narily employ  the  wrecking  vessels,  if  adapted  to  the  service 
required,  in  the  order  in  which  they  arrive,  for  this  is  ob- 
viously just ;  and  if  he  employs  them  in  any  other  order, 
unless  his  reasons  for  doing  so  are  satisfactory  to  the  court, 
it  may  fairly  be  inferred  that  improper  influences  have  been 
exerted  upon  him  by  some  of  the  salvors  to  the  disadvan- 
tage of  others.  Such  improper  influences  are  not  to  be 
tolerated. 


Section  TV.  — AMOUNT  OF  SALVAGE. 

The  amount  to  be  awarded  to  salvors  rests  entirely 
in  the  discretion  of  the  court,  and  depends  upon  the 
circumstances  of  the  case. 

Although,  as  will  readily  be  seen,  no  fixed  rule  can 
be  laid  down  upon  the  subject,^  still  there  are  certain 
general  principles  which  influence  the  court  in  fixing 
the  amount  to  be  awarded.  The  court,  as  a  general 
rule,  will  take  into  consideration  all  the  facts  of  the 
case,  the  state  of  the  weather  at  the  time  the  services 
were  rendered,  the  degree  of  damage,  and  danger  to 
the  ship  and  cargo,  the  risk  and  peril  incurred  by  the 
salvors,  the  time  occupied,  and  the  value  of  the  prop- 
erty. The  amount  awarded  generally  far  exceeds  a 
mere  remuneration  for  work  and  labor,  the  excess  being 
intended,  upon  principles  of  sound  policy,  not  only  as 
a  reward  to  the  particular  salvor,  but  as  an  inducement 
to  others  to  undergo  risk  and  peril  in  the  rescue  of 
property  in  danger.^ 

The  court  will  not,  however,  fail   to   guard  against 

1  The  Cuba,  1  Lush.  15.  n.  8.  Adm.  189,  190;  The  Albert, 

2  The  Industry,  3  Hagg.  203,  ib. ;  The  Ella  Constance,  ib. ;  Son- 
204.  See  also  The  Clifton,  3  Hagg.  derburg  v.  The  Tow  Boat  Co.,  3 
117;  The  Otto  Hermann,  83  L.  J.  Woods,  143,  by  Bradley,  Justice. 


88  ADMIRALTY  LAW. 

exorbitant  demands,  and  an  undue  advantage  being 
taken  of  distress.^ 

Exorbitant  contracts  for  compensation  of  salvage  ser- 
vices will  not  be  enforced.^ 

Compensation  is  awarded,  not  upon  the  idea  of  a 
quantum  meruit,  but  by  way  of  rewarding  the  service  in 
proportion  to  the  degree  of  merit  in  each  particular 
case.^ 

The  reward  should  be  not  only  an  ample  remunera- 
tion for  the  risk  of  life  and  property,  and  for  labor, 
privations,  and  hardships  encountered,  but  so  liberal  as 
to  furnish  an  incentive  to  similar  exertions  by  others.* 

This  is  based  upon  the  enlarged  principles  and  policy 
of  maritime  jurisdiction  in  salvage  causes.^ 

The  amount  varies  with  the  hazard,  trouble,  and 
expense  incurred  in  each  particular  case.^ 

It  varies  also  with  the  fatigue,  anxiety,  determination 
to  encounter  dangers,  the  spirit  of  adventure,  skill,  and 
dexterity.^ 

1  The  Hector,  3  Hagg.  90-95.  Towboat  Co.  v.  The  Delphos,  Newb. 
See  also  The  Sarah,  1  C.  Rob.  313,  412;  McGirmis  v.  The  Pontiac,  5 
n.:  The  Wm.  Beckford,  3  C.  Rob.  McLean,  388;  Hand  r.  The  Elvira, 
355;  The  Fusilier,  10  L.  T.  n.  s.  Gilp.  60;  Tiie  Henry  Ewbank,  1 
699;  The   Emulous,!    Sumn.  210;  Sumn.  400. 

The  Henry  Ewbank,  1  Sumn.  400;  «  The  Narragansett,  Olcott,  390; 

Fritz  V.  Bull,   12    How.   466;  The  The  Industry,  3  Hagg.  Adm.  202 ; 

Genessee  Chief,  12  How.  443;  The  Bearse  v.  Pigs  of  Copper,  1  Story, 

Blaireau,  2  Cranch,  266.  314. 

2  The  Homely,  8  Ben.  495.  .  «  Weeks  v.  The  Catharina  Maria, 
«  The      John     E.     Clayton,     4  2  Pet.   Adm.  422;   Barrels  of   Oil, 

Blatchf.   372;  Hand  w.  The  Elvira,  1    Sprague,  91;   s.  c.  7  Law   Rep. 

Gilp.  60;  The  Wm.  Beckford,  3  C.  377;  The  Narragansett,  1  Blatchf. 

Rob.  286.  211 ;  Taylor  v.  The  Friendship,  Bee, 

*  Warder  v.  La  Belle  Creole,  1  175. 

Pet.  Adm.  31;  Bond  ».  The  Cora,  f  Hand  r.  The  Elvira,   Gilp.  60; 

2  Wash.  C.  C.  80;  Bearse  i;.  Pigs  of  The  Wm.  C.  Beckford,  3  C.  Rob. 

Copper,  1  Story,  314 ;  The  Emulous,  286 ;  Barden  i-.  The  Wm.  Penn,  2 

1  Sumn.  207;  Conlon  v.  The  Nep-  Hughes,  145. 
tune,    2    Pet.    Adm.    356 ;   Union 


SALVAGE.  89 

It  varies  also  with  the  actual  danger.^ 

The  amount  of  salvage  awarded  must  necessarily  rest 
in  a  sound  discretion,  to  be  exercised  according  to  the 
circumstances  in  each  case.* 

The  decree  may  be  for  more  than  is  demanded.' 

In  a  case  where  Dr.  Lushington  refused  to  be 
influenced  by  the  decision  of  arbitrators  in  regard  to 
another  ship,  he  said  that  Lord  Stowell,  in  a  case  where 
the  salvors  themselves  had  claimed  too  little,  held  they 
were  not  restricted  to  their  own  demand.* 

The  court  is  not  influenced  in  any  way  by  the  amount 
of  claim  made  by  the  salvors.  Lord  Stowell  once  gave 
a  larger  amount  than  that  at  which  the  action  was 
entered.* 

It  is  increased  as  an  incentive  and  premium.' 

It  is  also  increased  to  encourage  others  to  save  prop- 
erty in  distress.^ 

"  The  spirit  of  the  rule  which  governs  salvage 
awards  requires  that  while  they  should  not  be  extrav- 
agant, they  should  always  be  generous."  ® 

»  The  M.   B.   Stetson,   1  Low.  The   Jonge    Bastiaan,    5    C.   Rob. 

122;  The  Princess  Alice,  3  W.  Rob.  287. 

138;   The   Georgiana,   1   Low.   93;         ♦The    Denia,    A.  C,  May   10, 

Post  V.  Jones,   19  How.   150;   The  1842,    Shipping    Gazette,   Young's 

Deveron,  1  W.  Rob.  180.  Digest  of  Maritime  Law  Cases,  p. 

«  The  Charles,  Newb.337;  Hand  119,  No.  1804. 
r.  The  Elvira,  Gilp.   60;   Talbot  v.         «   The    Firefly    v.    The    Miaza, 

Seeman,  1  Cranch,  1;   The   Rising  July  4,    1856,    Shipping    Gazette, 

Sun,  1  Ware,  384;  The  Aquila,   1  Young's   Digest  of   Maritime  Law 

C.  Rob.  32;  The  Centurion,  1  Ware,  Cases,  p.  119,  No.  1815. 
477;  The  Fortune,  2  W.  Rob.  92;         «  Brevoor  r.  The  Fair  American, 

Rowe  V.  The  Brig ,  1  Mason, 372;  1  Pet.  Adm.  90;  Taylor  v.  The  Cato, 

The  Henry  Ewbank,  1  Sumn.  400;  1  Pet.  Adra.  48. 
Cross  F.  The    Bellona,    Bee,    194;         '  Mason    r.     The    Blaireau,    2 

McGinnis  v.  The  Pontiac,  5  McLean,  Cranch,  240;  The  Sarah,  1  C.  Rob. 

367;  The  Britain,  1  W.   Rob.   50;  313,  n.;  The  Hector.  3  Hagg.  Adm. 

Clayton  v.  The  Harmony,   1   Pet.  90;  Bell  v.  The  Anne,  2  Pet.  Adm. 

Adm.  79.  282. 

•  Pratt  V.  Thomas,  1  Ware,  432;         »  The  Chas.  Henry,  1  Ben.  8. 


90  ADMIRALTY  LAW. 

Marine  assistance  by  steam-vessel  must  be  encour- 
aged by  a  liberal  compensation.^ 

In  The  Steamship  Huntsville,  United  States  District 
Court,  District  of  South  Carolina,  Magrath,  J,  (not  re- 
ported), the  court  says :  "  The  circumstance  that  the 
salvage  service  was  in  part  rendered  by  a  steam-vessel, 
and  to  a  steam-vessel,  has  always  been  regarded  as  jus- 
tifying a  higher  compensation  than  would  be  given  to 
sailing-vessels." 

Expenses  and  a  reasonable  compensation  are  decreed, 
although  not  a  salvage  service.^ 

Where  salvors  are  very  meritorious,  and  the  value 
of  the  vessel  and  articles  saved  is  very  small,  the  court 
will  exceed  in  its  allowance  the  proportion  usually 
given.^ 

A  moiety  has  rarely  been  given,  except  in  cases  of 
derelict,  and  of  some  peculiar  cases.^ 

Where  the  property  is  small,  the  salvors  numerous, 
and  the  perils  imminent,  or  the  services  laborious  and 
exhausting,  a  larger  allowance  than  a  moiety  is  jus- 
tified.5 

Still  two-thirds  of  the  whole  proceeds  have  been 
allowed.^ 

It  is  only  where  the  owner  abandons  claim  to  the 

1  The  Caraanche,  8  Wall.  479;  *  Bearse  r.  Pigs  of  Copper,  1 
The  Delaware,  6  Blatchf.  527;  The  Story,  326;  The  Aquila,  1  C.  Rob. 
True  Blue,  4  Moore  P.  C.  C.  96;  32;  The  Jouge  Bastiaan,  5  C.  Rob. 
The  Emulous,  1  Sumn.  207;   Baker  287. 

V.  Henienway,  2  Low.  501.  *  Sprague  v.   Barrels  of  Flour, 

2  The  Happy  Return,  2  Hagg.  197;  The  William  Hamilton,  3 
Adm.  198;  The  Traveller,  3  Hagg.  Hagg.  Adm.  168;  The  Reliance,  2 
Adm.  370;  The  James  Watt,  2  W.  Hagg.  Adm.  90;  The  Jonge  Bas- 
Rob.  270;   The  Purissima  Concep-  tiaan,  5  C.  Rob.  287. 

cion,  3  W.  Rob.  181 ;  The  Favorite,  «  The  Jonge  Bastiaan,  5  C.  Rob. 
2  C.Rob.  232;  The  Louisa  Jane,  287;  The  Jubilee,  3  Hagg.  Adm. 
2  Low.  304.  43,  n. 

»  Smith  V.  The  Stewart,  Crabbe, 
222. 


SALVAGE.  91 

proceeds  that  the  court  will  award  the  whole  to  the 
salvor.^ 

Cases  have  occurred  where  the  whole  property  saved 
was  given  to  the  salvors,  the  value  being  small  and  the 
peril  great.^ 

A  low  rate  of  salvage  should  be  allowed  where  sal- 
vors in  good  weather  simply  towed  a  vessel  disabled  to 
a  safe  anchorage,  incurring  no  risk  of  life  or  property, 
and  no  deviation  from  their  ordinary  pursuits.^ 

Anciently,  it  was  a  positive  rule,  in  cases  of  derelict 
property,  to  allow  one-half  to  the  salvors.* 

The  rule  bends  to  the  reason  and  equity  of  particu- 
lar cases.^ 

Though  somewhat  relaxed,  the  rule  still  continues 
to  be  favored.® 

The  rule  of  compensation  is  deemed  flexible,  yet  a 
moiety  is  generally  awarded.^ 

The  growing  preference  is  on  a  moiety  in  cases  of 
absolute  derelict,^  unless  special  circumstances  should 
call  for  a  discriminating  valuation.^ 

The  compensation,  at  a  moiety,  is  not  fixed,  but  an 

1  The  Carl  Schura,  8  Cent.  J^.  J.  Blenden  Hall,  1   Dods.   414;  The 

147.  Eiliotta,  2  Dods.  75. 

a  The  Rob   Roy,   Calcutta  Vice         '  The  Mary  Ford,  3  Dall.  188; 

A.  C,  Shipping  Gazette,  Feb.  27,  The  Adventure,  8  Cranch,  226;  The 

1855.  Eiliotta,  2  Dods.  75;  Cross  r.  The 

»  The  Bolivar  v.  The  Chalmette,  Bellona,   Bee,    193 ;    Flinn   v.  The 

1  Woods,  397,  by  Bradley,  Ct.  J.  Leander,  Bee,  260;  Bell  v.  Tlie  Ann, 

*  The  Charles  Henry,  1  Ben.  8;  2  Pet.  Adm.  279;  either  a  moiety 
Lewis  V.  The  Elizabeth  and  Jane,  1  or  two  fifths,  The  Aquila,  1  Rob. 
Ware,  39;  The  Aquila,  1  C.  Rob.  32;  The  Jonge  Bastiaan,  5  C.  Rob. 
32.  287;  The  Lord  Nelson,  Edw.  Adm. 

•  The  Elizabeth    and    Jane,    1  79;  The  Maria,  Edw.  Adm.  175. 

Ware,  39  ;  Rowe  v.  The  Brig ,         »  The  Henry  Ewbank,  1  Sumn. 

1  Mason,  372.  400;  The  John'Wurts,  Olcott,  473; 

«  The  Henry  Ewbank,  1  Sumn.  Bond  v.  The  Cora.  2  Wash.  C.  C.  80. 

410;  Rowe  v.  The  Brig ,  1  Ma-         •  The  John  Wurts,  Olcott,  473; 

son,  372;  The  Fortuna,  4  C.  Rob.  The  Waterloo,  Blatchf.  &  H.  114; 

278;  L'Esperance,  1  Dods.  46  ;  The  The  Galaxy,  Blatchf.  &  H.  270. 


92  ADMIRALTY  LAW. 

adequate  reward,  according  to  the  circumstances  of  the 
case.^ 

But  it  is  incumbent  on  the  claimant  to  establish  that 
a  different  measure  should  be  allowed.^ 

One-third  to  three-fourths  allowed.^ 

As  a  general  rule,  the  rate  of  salvage  of  a  vessel 
derelict  at  sea  is  a  moiety  of  her  value.* 

One-third  allowed  in  case  of  a  quasi  derelict.^ 

The  ordinance  of  France  gives  in  cases  of  gross  der- 
elict one-third  of  the  gross  value.^ 

It  is  with  great  reluctance  that  more  than  a  moiety 
is  awarded." 

Except  in  special  cases,  in  which  great  hardships  and 
dangers  have  been  encountered,  this  is  the  extreme 
limit.^ 

Cases  might  occur  of  such  extreme  peril  and  dif- 
ficulty, of  such  exalted  nature  and  enterprise,  that  a 
moiety  even  of  a  very  valuable  property  might  be  too 
small ;  and,  on  the  other  hand,  where  attended  with  so 

^  Post  V.  Jones,  19   How.    161;  *  The  George  Nicholaus,  Newb. 

The  Thetis,  2  Knapp,  390.  453.     And  see  Flinn  v.  The  Leander, 

2  The  Charles  Henry,  1  Ben.  11;  Bee,  260;  Post  v.  Jones,  19  How. 

Rowe  V.  The  Brig ,   1  Mason,  150;  The  Anna,  6  Ben.  170. 

372;  L'Esperance,  1  Dods.  46.  6    Rowe    v.    The    Brig  ,    1 

«  The  John  Wurts,  Olcott,  472;  Mason,  377;  Mason  r.  The  Blaireau, 

The  Jubilee,  3  Hagg.  Adm.  43,  n.  2  Cranch,  240;  McDonough  v.  Dan- 

*  The  John  E.Clayton,  4  Blatchf.  nery,  3  Dall.  188;  The  Adventure, 

372;  Sprague  v.  Barrels  of   Flour,  8  Cranch,  221. 

2  Story,  197;  The  Fortuna,  4  C.  ^  Sprague  v.  Barrels  of  Flour, 
Rob.  278;  Tlie  Marquis  of  Huntly,  2  Story,   198;   The  Frances   Mary, 

3  Hagg.  Adm.  246 ;  The  Charlotta,  2  Hagg.  Adm.  87;  The  Effort,"3 
2  Hagg.  Adm.  361;  The  Charles  Hagg.  Adm.  165;  The  Britannia, 
Henry,  1  Ben.  8;  The  Ida  L.  How-  3  Hagg.  Adm.  153;  The  Queen  Mab, 
ard,  1  Low.  6;  Post  r.  Jones,  19  3  Hagg.  Adm.  242;  The  Ewell 
How.  150;   The   British  Consul  v.  Grove,  3  Hagg.  Adm.  209 ;  Rower. 

Smith,  Bee,  180;  Morehouse  j;.  The    The  Brig ,  1  Mason,  372. 

Jefferson,  1  Pet.  Adm.  40,  n;  Hen-  »  The  John  E.  Clayton,  4  Blatchf. 

drey  »,  The  Priscilla,  Bee,  1 ;  Rowe  372. 

V.  The  Brig ,  1  Mason,  372 ;  The 

Blenden  Hall,  1  Dods.  414. 


SALVAGE.  93 

little  difficulty  and  peril,  that  it  would  entitle  the  par- 
ties to  little  more  than  a  mere  qitaniiim  meruit,  for 
work  and  labor  done.* 

In  estimating  the  value  of  the  services  rendered  by 
the  salvors,  the  court  looks  to  the  exertions  actually 
made,  and  the  peril  to  which  the  property  saved  was 
subject.  It  will  not  take  into  consideration  exertions 
that  might  h.ave  been  required,  or  danger  that  might 
have  subsequently  arisen,  if  the  salvage  had  been 
effected  at  a  later  period. 

"  Subsequent  perils  and  storms,"  observes  Mr.  Jus- 
tice Story,  in  the  case  of  The  Emulous,  1  Sumn.  216, 
*'  may  enter  as  an  ingredient  into  the  case,  when  they 
were  foreseen,  to  show  the  promptitude  of  the  assist- 
ance and  the  activity  and  sound  judgment  with  which 
the  business  was  conducted  ;  but  they  can  scarcely  avail 
for  any  other  purpose.  Ought  the  salvage  to  be  dimin- 
ished by  a  favorable  state  of  the  weather  after  the 
arrival  in  port  ?  If  not,  why  should  it  be  increased  by 
an  unfavorable  state  of  the  weather  ?  "  '^ 

In  determining  the  amount  to  be  paid  salvors,  the 
degree  of  peril  to  which  they  were  exposed  is  to  be 
taken  into  consideration.^ 

Where  there  is  a  joint  salvage,  a  vessel  saving  life 
as  well  as  property  has  been  awarded  a  higher  remu- 
neration than  one  saving  property  only.* 

Where  the  vessel  salved  is  a  steamboat  carrying  pas- 
sengers, the  reward  is  not  to  be  estimated  by  the  same 

1  Spencer  v.  The  Charles  Avery,  •  The  Eastern    Monarch,  Lush. 

1  Bond,  122;  Rower.  The  Brig ,  81;  The  Thomas  Felden,  32  L.  J. 

1  Mason,   372.     (See  further  as  to  Adm.  61. 

derelict,  jmt.)  ♦  The  Clarisse,  Swa.  129.     See 

*    See    also    The    Versailles,    1  also  The    Coromandel,   Swa.   205; 

Curt.    360;    Talbot    r.    Seeman,   1  The  Bartley,  Swa.  198;  The  Alma, 

Cranch,    1 ;    The    Brig    Alphonso,  Lush.  378. 
1  Curt.  360;  The  Independence,  2 
Curt.  350. 


94  ADMIRALTY  LAW. 

considerations  of  value  as  are  applied  to  other  vessels. 
Such  vessels  make  large  profits,  and  are  not  to  pay  for 
salvage  services  as  if  they  were  only  carrying  ballast.^ 

As  to  suits  for  salvage  services  rendered  to  ships  of 
war,  see  The  Prinz-Frederik,  2  Dods.  451 ;  The  Comus, 
2  Dods.  464;  The  Exchange,  7  Cranch,  116;  The 
Thomas  A.  Scott,  10  L.  T.  n.  s.  726. 

Steamers,  in  consequence  of  the  cost  at  which  they 
are  fitted  up,  the  power  which  'they  possess  of  perform- 
ing salvage  services  with  much  greater  celerity  than 
other  vessels,  and  under  circumstances  in  which  no  other 
assistance  could  prevail,  and  the  greater  safety  to  the 
salved  vessel  which  attends  their  services,  are  generally 
entitled  to  greater  salvage  reward  than  other  vessels.^ 

Formerly  individuals  effected  salvage  services.  Now 
steam  and  associated  powers  of  incorporation  perform 
such  services  more  easily,  quickly,  and  safely ;  and 
sometimes  they  do  what  individual  efforts  would  fail 
to  accomplish,  as  in  the  case  of  the  "Protector,"  owned 
by  the  New  Harbor  Protection  Co.  in  the  port  of  New 
Orleans ;  and  in  The  Camanche,  8  Wall.  448.  The 
public  interests  are  promoted  by  the  admiralty  in  fos- 
tering and  encouraging  steam  corpora  ted  power,  and 
capital  and  enterprise,  by  liberal  rewards. 

As  Mr.  Parsons,  a  very  distinguished  and  learned 
writer,  more  than  once  tells  us,  steamboats  should  be 
encouraged.' 

1  The  Adrianople,  3  Hagg.  151,  1045;  The  Graces,  2  W.  Rob.  294; 
153;  The  London  Merchant,  3  Hagg.  Brooks  Barden  et  ah.  p.  The  Ship 
394,  400.  William  Penn,  2  Hughes,  144,  U.  S. 

2  The  Kingalock,  1  Spinks,  263,  Circuit  Ct.,  Dist.  of  S.  C,  1853, 
267;  The  Alfen,  Swa.  189,  190;  The  Wayne,  J. ;  The  Emulous,  1  Sumn. 
Raikes,  1  Hagg.  240;  The  London  207;  The  Camanche,  8  Wall.  479; 
Merchant,  3  Hagg.  394;  The  Earl  The  Delaware,  6  Blatchf.  527;  Ba- 
Grey,  3  Hagg.  363;  The  Perth,  3  ker  «.  Hemenway,  2  Low.  501. 
llagg.  414;  The   Shannon,  11  Jur.         «  2  Pars.Sh.  &  Adra.  274-294. 


SALVAGE.  95 

Taney,  Chief  Justice,  in  the  Circuit  Court  of  Dela- 
ware, held  that  the  owners  of  a  steam-tug,  on  a  dan- 
gerous station  and  at  a  heavy  expense,  kept  for  salvage 
and  towage  purposes,  were  entitled  to  the  full  remu- 
neration usually  awarded  to  salvors  who  peril  life  and 
property,  though  the  particular  salvage  services  may  not 
have  been  accompaiued  by  such  danger  or  peril} 

On  the  principles  which  induce  courts  of  admiralty 
to  award  to  salvage  by  steamships  greater  salvage  com- 
pensation than  to  other  vessels,  the  District  and  Circuit 
Courts  of  the  United  States  for  the  District  of  Louisi- 
ana have  decreed  larger  salvage  rewards  to  the  steam 
iron  fire-boat  "  Protector." 

This  boat  is  owned  by  a  corporation  organized  under 
the  laws  of  Louisiana,  and  is  employed  solely  for  sal- 
vage purposes  in  the  harbor  of  New  Orleans. 

It  will  suffice  here  to  state  that  the  "  Protector,"  in 
addition  to  her  extraordinary  capacity  to  throw  large 
quantities  of  steam  and  of  water  to  extinguish  fires, 
possesses  a  new  appliance  for  forcing  dry  carbonic  acid 
gas  into  a  vessel's  hold,  and  a  strong  solution  of  sul- 
phuric acid,  soda,  and  water,  to  extinguish  fires  on  deck 
and  in  open  places. 

In  the  case  No.  11,207  of  the  docket  of  the  United 
States  District  Court  for  the  District  of  Louisiana,  The 
New  Harbor  Protection  Company  (owners  of  the  "  Pro- 
tector ")  t'.  Ship  Tornado  and  Cargo  (not  reported),  Bill- 
ings, J.,  said  :  — 

It  is  but  proper  to  remark,  that  the  evidence  in  this  case 
estahlislies  the  efficiency  of  tlie  carbonic  acid  gas  used  by  the 
libellants,  the  owners  of  the  "  Protector,"  in  extingiiishinjif 
fires  on  board  vessels.     The  preponderance  of  evidence  leads 

1  Virdin  v.  The  Caroline.  6  Am.  &  Adm.  294.  and  in  Abbott.  See 
Law  Reg.  222,  cited  in  2  Pars.  Sh.    also  The  BlackwaU,  10  Wall.  13. 


96  ADMIRALTY  LAW. 

to  the  conclusion  that  the  "  Protector "  would  have  extin- 
guished the  fire  by  tlie  use  of  the  gas  alone,  had  its  appli- 
cation not  been  suspended.  It  is  also  clear  that  the  gas  was 
effective  in  staying  the  progress  of  the  fire,  and  that  the 
water  found  a  much  larger  portion  of  the  cotton  uninjured 
by  fire  than  would  have  been  the  case  had  not  the  gas  been 
used  by  the  "  Protector,"  and  therefore  it  is  entitled  to  com- 
pensation for  salvage  services,  not  only  for  pumping  out,  but 
for  the  use  of  the  carbonic  acid  gas  in  retarding  the  progress 
of  actual  combustion. 

And  in  the  case  No.  9082  of  the  docket  of  the 
United  States  Circuit  Court  for  the  District  of  Louisi- 
ana, The  Suliote  (Consolidated  Cases,  not  reported), 
Bradley,  J.,  said :  — 

In  this  distribution  no  special  allowance  will  be  made  to 
the  "  Protector  "  for  the  cost  of  gas  or  materials,  that  being 
taken  into  consideration  in  awarding  to  her  two-thirds  of  the 
balance.  In  making  this  award  to  the  "  Protector,"  we  have 
had  regard  to  the  fact  that  the  value  of  her  aid  in  affording 
salvage  service  is  greatly  enhanced  by  her  being  fitted  and 
furnished  for  performing  this  kind  of  work.  Being  always 
ready  and  at  hand,  and  powerfully  efficient  for  the  accom- 
plishment of  her  purpose,  a  fire  happening  to  any  vessel  in 
the  harbor  is  bereft  of  much  of  its  terror,  and  the  damage 
actually  ensuing  therefrom  is  in  most  cases,  and  probably  was 
in  this  case,  greatly  lessened  in  extent.^ 

Where  the  time  occupied  by  a  steamer  in  render- 
ing salvage  service  is  of  limited  duration,  that  circum- 
stance of  itself  will  not  operate  against  the  claim  of 
the  salvors.^ 

Adverting  to  the  second  ingredient  laid  down  in  The 
Blackwall,  10  Wall.  1,  in  determining  the  amount  of  sal- 

1  Since  this  was  written,  I  have         '  The  Andalusia,  12  L.  T.  n.  s. 
met    a    report  of  the  case   in  the    584;  Sonderburg  v.  The  Tow  Boat 
Federal  Reporter,  vol.  v.  p.  99,  un-    Co.,  3  Woods,  146,  by  Bradley,  J. 
der  the  title  of  Murphy  and  Others 
V.  Ship  Suliote. 


SALVAGE.  97 

vage,  namely,  promptitude,  skill,  and  energy,  I  remark 
that,  in  the  case  of  The  Steamboat  Bacon,  Newb.  274, 
the  court  said  :  — 

When  persons  like  the  plaintiffs,  by  great  ingenuity  and 
skill,  and  at  great  expense,  succeed  in  the  construction  of 
apparatus  and  machinery  by  which  a  boat  can  be  raised  in 
twelve  hours,  which  could  not  be  raised  at  all  without  their 
machinery  and  apparatus,  why  should  the  owners  of  prop- 
erty complain  of  the  shortness  of  time  employed  ?  The 
sooner  the  property  is  raised  out  of  the  water  the  better  for 
owners  ;  long  delay  with  many  kinds  of  property  would  be 
utter  destruction  to  that  property. 

And  in  the  case  of  the  Rothsay  Castle,  2  Mar.  Law 
Cases,  on  p.  207,  the  court  says :  — 

The  time  occupied  was  short,  but  was  effective.  The 
court,  in  all  such  cases,  will  ever  keep  in  view  the  fact  that 
steam-power,  the  cause  and  forerunner  of  so  many  and  impor- 
tant and  beneficial  changes  in  all  things  connected  with  its 
influences,  has,  in  regard  to  salvage,  effected  two  great  boons 
in  favor  of  navigation  and  the  world  of  commerce  ;  namely, 
the  saving  of  human  life  and  propert}',  with  nearly  entire 
immunity,  and  with  almost  certain  success. 

The  court,  then,  estimating  the  services  of  the  salvors  in 
this  case  hut  as  ordinary  services  in  respect  of  personal  risk  or 
daring,  or  of  labor,  and  in  regard  of  the  object  achieved,  that 
it  was  achieved  with  skill,  good  conduct,  and  complete  suc- 
cess ;  keeping  also  before  it  the  policy  of  encouraging,  in  such 
enterprises,  the  aid  and  co-operation  of  great  steam-packet  com- 
panies,—  will  award  to  tiie  petitioners  one-fourth  of  the  value 
of  this  vessel  and  her  stores,  being  a  sum  of  £375,  with  the 
costs  of  suit 

In  the  case  of  The  Northumberland,  2  Mar.  Law 
Cases,  215,  it  was  held  that, 

Where  salvage  services  are  rendered  by  steamships,  the 
amount  of  salvage  which  the  court  will  award  is  not  necessa- 

7 


98  ADMIRALTY  LAW. 

rilj  affected  by  the  fact  of  the  services  performed  occupying 
only  a  short  time  ;  the  court  now  holding  that,  with  respect 
to  steamships,  it  is  better  that  the  service  should  occupy  a  short 
space  of  time^  than  the  length  of  time  it  used  to  occupy,  from 
the  delay  which  arose  to  enable  sailing-ships  to  make  manoeu- 
vres necessary  to  perform  the  service. 

And  in  that  case,  on  page  216,  Dr.  Lushington  says : 

Respecting  the  duration  of  the  service^  it  was  short,  and  did 
not  exceed  eight  hours ;  but  that  is  a  question,  where  steam- 
vessels  are  employed,  which  the  court  does  not  consider  oper- 
ates against  the  claim  for  remuneration,  because  the  court  has 
held  that  it  is  better  that  the  service  should  occupy  a  short  space 
of  time,  than  the  length  of  time  it  used  to  occupy,  from  the 
delay  which  arose  to  make  the  manoeuvres  requisite  to  per- 
form the  service. 

And  in  the  case  of  The  Syrian,  2  Mar.  Law  Cases, 
387,  it  was  held  that  in  awarding  the  amount  for  sal- 
vage  services,  the   shortness   of  the  duration   of 

SUCH   SERVICES    IS   AN   ELEMENT   OF   MERITORIOUSNESS. 

On  page  388,  in  that  case.  Dr.  Lushington  said :  — 

As  to  the  period  of  time  which  the  salvage  services  occu- 
pied, the  court  had  often  had  occasion  to  observe  that  the 
shorter  the  period  occupied  in  rescuing  a  ship  from  distress,  the 
more  meritorious  was  the  service. 

Where  the  salving  vessel  is  a  passenger  ship,  the 
court,  in  estimating  the  amount  of  salvage  to  be  awarded, 
will  take  into  consideration  the  nature  of  the  vessel's 
employment,^ 

The  great  responsibility  which  the  master  of  such  a 
vessel  takes  upon  himself  in  delaying  the  prosecution 
of  the  voyage  will  also  be  taken  into  consideration.'* 

1  The  Vanguard,  5  Irish  Jur.  2  xhe  Ella  Constance,  33  L.  J. 
N.  8.  364.  Adm.  189-192. 


SALVAGE.  99 

Where  ships*  boats  or  other  property  are  employed 
in  connection  with  the  salvage  service,  the  value  of 
that  property  is  to  be  taken  into  consideration  in  fixing 
the  compensation  of  the  salvors.^ 

The  fact  that  such  property  may  be  of  trifling  im- 
portance does  not  necessarily  detract  from  the  value  of 
the  salvage  service,  whilst  the  placing  of  valuable  prop- 
erty in  peril  does  undoubtedly  enhance  the  merit.^ 

In  cases  where  the  salving  vessel  has  sustained  dam- 
age or  loss  in  rendering  salvage  services,  the  court  has 
frequently,  in  addition  to  the  salvage,  awarded  a  rea- 
sonable compensation  for  the  damage,  and  for  the  loss 
of  the  ship's  services  whilst  undergoing  repairs.' 

It  is  usual  to  allow  the  salving  vessel  any  extra 
expenses  incident  to  the  salvage  services  which  she 
may  have  incurred  over  and  above  her  ordinary  out- 
lays.* 

Where  a  vessel  is  injured  or  lost  whilst  engaged  in 
the  salvage  service,  the  presumption  is  that  the  injury 
or  loss  was  occasioned  by  the  necessities  of  the  service, 
and  not  by  the  default  of  the  salvors ;  and  in  such  a 
case  the  burden  of  proof  lies  upon  the  defendants,  who 
allege  that  the  loss  was  caused  by  the  salvors'  own 
acts." 

In  The  Jane,  2  Hagg.  388,  a  south-sea  whaler  which 
had  been  detained  in  consequence  of  salvage  services 
rendered  by  her  was  decreed  additional  compensation 
to  cover  the  risk,  damage,  and  expense  which  she  had  in- 
curred ;  and  in  The  Salacia,  2  Hagg.  262,  compensation 

1  The  Fusilier,  B.  &  L.  341.  3  Haprg.  434.    See  also  The  Corne- 

•  Ibid.  lias  Grinnell,  11  L.  T.  n.  s.  278. 

•  The  Spirit  of  the  Age,  Swa.  *  Sonderburg  v.  The  Tow  Boat 
286;  The  George   Dean,  Swa.  290;  Co.,  3  Woods,  146. 

The    Saratoga,    Lush.    318;    The         »  The  Thomas  Blyth,  Luih.  16. 
Eleanore,  B.  &  L.  185;  The  Martha, 


100  ADMIRALTY  LAW. 

was  in  the  same  way  awarded  to  a  vessel  engaged  in 
the  sealing  trade,  for  the  loss  of  the  sealing  season. 

In  The  Howthandel,  1  Spinks,  25,  the  loss  of  a  quan- 
tity of  ice  with  which  the  salving  vessel  was  laden,  was 
taken  into  consideration  in  awarding  the  salvage. 

Where  any  payments  have  been  made  or  are  claimed 
by  the  ship-owner  in  respect  of  the  damage  or  detention 
of  the  salving  vessel,  they  should  be  stated  in  the  libel, 
that  they  may,  if  reasonable,  be  allowed  against  the 
defendants,  or  the  courts  will  not  afterwards  take  the 
payments  into  account  as  against  the  other  claimants 
in  apportioning  the  salvage.^ 

If  a  fishing-vessel  should  interrupt  a  lucrative  em- 
ployment for  the  purpose  of  rendering  salvage  service, 
that  fact,  and  the  loss  she  may  have  sustained,  will  form 
an  essential  ingredient  in  the  estimate  of  the  award.'^ 

In  ordinary  cases,  however,  where  there  is  no  imme- 
diate danger,  the  court  will  lean  against  the  claims  of 
fishermen  to  be  compensated  to  the  full  extent  of  their 
possible  earnings.^ 

The  damage  must  not  be  too  remotely  connected 
with  the  salvage.* 

It  was  formerly  laid  down  that  in  awarding  salvage 
the  court  would  not  take  into  consideration  any  risk 
which  the  owner  of  the  salving  vessel  underwent  of 
having  his  policy  of  insurance  vitiated  in  consequence 
of  a  deviation  by  her,  but  would  consider  every  vessel 
uninsured.^ 

1  The  Wigtonshire,  36  L.  J.  «  The  Deveron,  1  W.  Rob.  180. 
Adm.  11.  See  also  The  Jane,  2  Hagg.  338 ;  The 

2  The  Louisa,  3  W.  Rob.  99.  Osbona,  1  Spinks,  161 ;  The  Beaver,  3 
8  The  Nicolai  Heinrich,  17  Jur.    C.  Rob.  292;  Lawrence  v.  Sideboth- 

320.  am,  6  East,  45;   and  The  Medora, 

*  The  Cornelius  Grinnell,  11  L.  The   Jeannette,  and  The    Arabian, 

T.  N.  s.  278.  See  also  The  Mulgrave,  Pritch.  Dig.  835. 
2  Hagg.  77. 


SALVAGE.  101 

In  more  recent  cases,  however,  the  court  has  not  rec- 
ognized this  doctrine,  but  has  taken  into  consideration 
risks  of  this  nature  as  materially  affecting  the  propor- 
tion of  salvage  to  be  awarded  to  the  owner.^ 

In  a  work  quoted  by  me  on  the  fir^t  page  of  this 
book,  viz.  Arnould  on  Marine  Insurance,  3d  edition, 
London,  by  David  MacLachlan,  M.A.,  the  law  as  to  the 
effect  of  a  deviation  is  thus  laid  down  on  pages  479, 
480:  — 

A  doubt,  dishonorable  to  the  jurisprudence  of  Christian 
communities,  appears  for  some  time  to  have  prevailed  both  in 
this  country  and  the  United  States,  whether  a  departure  from 
the  direct  course  of  the  voyage,  for  the  purpose  of  saving  the 
lives  of  men  threatened  with  an  imminent  danger  of  shipwreck 
or  foundering,  was  or  was  not  a  deviation  which  would  dis- 
charge the  underwriters ;  it  must  now,  however,  be  taken  as 
clear  law,  both  on  this  and  the  other  side  of  the  Atlantic,  that 
a  deviation  of  this  kind,  sanctioned  alike  by  the  true  interests 
of  commerce  and  the  clearest  precepts  of  humanity,  can  in  no 
instance  be  held  to  discharge  the  underwriters.  In  this  coun- 
try see  the  dictum  of  Lawrence,  J.,  in  Lawrence  v.  Sidebotham, 
6  East,  54,  and  the  judgments  of  Lord  Stowell  in  The  Bejiver, 
8  C.  Rob.  Adm.  292 ;  and  The  Jane,  2  Hagg.  Adm.  338- 
345.  In  the  United  States,  see  the  cases  collected  in  1  Phil- 
lips Ins.,  No.  1027  ;  3  Kent's  Comm.  313.  See  especially  the 
judgment  of  Story,  J.,  in  The  Schooner  Boston,  1  Sumn. 
328.  This  liberty,  however,  has  been  expressly  confined, 
in  the  United  States,  to  those  cases  only  in  which  the  object 
of  the  deviation  is  the  preservation  of  human  life  ;  and  it  has 
been  held  not  to  extend  to  the  case  of  saving  property.  See 
the  cases  referred  to,  1  Phillips  Ins.,  No.  1028.  I  apprehend 
the  law  will  be  found  the  same  in  this  country. 

It  appears,  however,  to  be  doubtful  whether  the 
courts  of  England  will  recognize  the  distinction  pointed 

^  The  Sir  Ralph  Abercrombie,  this  case.  See  also  The  Scindia, 
L.  R.  1  P.  C.  454.  See  Dr.  Lush-  L.  R.  1  P.  C.  241,  and  The  Alethia, 
iugton's  remarks  on  page  461  of    13  W.  Bep.  279. 


102  ADMIRALTY  LAW. 

out  by  Mr.  MacLachlan.  In  a  recent  case  (The  Thetis, 
L.  R.  2  Adm.  365),  Sir  Robert  Phillimore  is  reported  to 
observe :  — 

It  has  been  urged  upon  me  that  the  act  of  the  master  in 
this  case  could  not  have  been  within  the  scope  of  his  commis- 
sion, and  was  not  for  the  benefit  of  the  owners,  because  a 
deviation  for  the  purpose  of  rendering  salvage  service  to 
property  would,  upon  general  principles,  avoid  a  policy  of 
insurance  ;  but  that  is  an  undecided  and  ^jery  doubtful  prop- 
osition of  English  law,  and  certainly  one  to  which  I  cannot 
give  my  assent.  It  was  at  all  events  pronounced  by  the  Privy 
Council  in  1866  to  be  an  undecided  point  of  law.  The  True 
Blue,  L.  R.  1  P.  C.  254,  255.  I  am  aware  that  the Atmiican 
courts  appear  to  have  made  a  distinction  between  a  deviation 
for  the  purpose  of  saving  life  and  for  that  of  saving  property  ; 
it  is  perhaps  not  quite  so  certain,  however,  as  generally  sup- 
posed, that  such  a  distinction  has  been  finally  established.^ 

If  the  object  of  the  deviation  be  to  save  the  life  of 
man,  the  humanity  of  the  motive  and  the  morality  of 
the  act  give  it  a  strong  claim  to  indulgence  ;  but,  after 
that  object  is  effected,  if  the  delay  be  continued  or  the 
risk  increased  by  adding  to  the  cargo  or  diminishing 
the  crew,  or  by  any  other  means,  for  the  purpose  of 
saving  property,  it  is  a  deviation,  and  the  insurers  are 
discharged.^ 

A  delay  to  save  the  crew  of  a  wrecked  and  sinking 
ship,  whose  lives  are  in  jeopardy,  is  not  a  deviation.^ 

A  vessel  was  passing  by  Gibraltar  when  the  captain's 
wife  was  on  deck  to  look  at  the  rock ;  turning  to  go 

*  See  on  the  same  subject  The         «  Bond  r.   Brig  Cora,  2  Wash. 

Ewbank,   1   Sumn.  400 ;   The  Na-  C.  C.  80. 

thaniel  Hooper,  3  Sumn.  535,  578;         »  The  Boston,  1  Sumn.  328;  The 

The  Blaireau,  2  Cranch,  240;  Wil-  Henry  Ewbank,  1  Sumn.  400. 
Hams  V.  A  Box  of  Bullion,  6  Am. 
Law  Rep.  363. 


SALVAGE.  103 

down  into  the  cabin,  she  missed  her  footing  and  fell  a 
distance  of  six  feet.  She  was  in  the  third  month  of 
pregnancy.  The  vessel  was  brought  to  anchor,  a  boat 
sent  ashore  for  a  physician,  and  the  vessel  remained 
there  eleven  days.  While  she  so  remained,  some  little 
cargo  was  taken  in.  Held,  where  the  object  of  the  de- 
parture from  the  course  is  to  carry  relief  to  mariners  or 
passengers  destitute  or  suffering  on  board  other  vessels, 
it  is  justifiable;  the  rule  is  not  confined  to  such  cases, 
and  it  can  make  no  difference  whether  the  object  of  the 
departure  is  to  alleviate  the  distress  and  administer  to 
the  necessities  of  persons  lawfully  on  board,  or  strangers 
suffering  from  disasters  sustained  by  the  loss  or  wreck 
of  another  vessel ;  for  the  dictates  of  humanity  are  as 
forcible  in  the  one  as  in  the  other  case,  and  it  would 
be  strange  if  the  law  recognized  any  discrimination 
between  them.^ 

A  departure  from  the  due  course  of  a  voyage  to  save 
property  merely  is  a  deviation,  and  will  forfeit  the  in- 
surance ;  but  a  departure  to  save  life  is  not.^ 

Where  the  ship  saved  is  derelict,  it  has  been  the  uni- 
form course  to  give  more  than  in  ordinary  salvage  cases, 
but  upon  the  same  principle  that  is  applied  to  other 
cases ;  namely,  the  dangerous  condition  of  the  property. 
Derelict,  like  other  salvage  cases,  are  to  be  governed 
by  the  value,  risk  of  life,  damage  to  the  property,  skill, 
labor,  and  duration  of  service.' 

It  was  anciently  the  practice  of  the  court  to  award 
to  salvors  a  moiety  of  the  property  found  derelict ;  but 
for  a  long  time  this  practice  has  been  departed  from, 

^  Perkins  v.  Augusta  Insurance         »  The  True  Blue,  L.  R.  1  P.  C. 

and  Banking  Co.,  10  Gray,  312.  250,  256.     See  also  The  Sara  Belle, 

'  Peterson  v.  The  Chandos,  Dist,  4  Notes  of  Cases,  144;  The  Florence, 

Ct.  Oregon,  1880,  Deady,  D.  J.,  4  16  Jur.  572,  578. 
Fed.  Rep.  645. 


104  ADMIRALTY  LAW. 

and  the  amoimt  rests,  as  in  other  cases,  in  the  discretion 
of  the  court,  and  does  not  necessarily  bear  any  fixed 
proportion  to  the  property  salved,  but  is  regulated  on 
the  principle  of  giving  an  adequate  reward  according 
to  the  circumstances  of  the  case. 

Sir  C.  Robinson  said  :  "  It  is  a  suggestion  of  common 
reason  that,  where  the  property  is  very  large,  a  smaller 
proportion  may  afford  adequate  remuneration ;  and  as 
that  is  the  only  true  measure  of  reward,  it  is  absurd  to 
assign  fixed  proportions,  which  must  operate  very  dif- 
ferently according  to  difference  of  value. "^ 

In  order  to  encourage  salvors  generally,  a  greater 
amount  is  given  where  the  value  of  the  property  saved 
is  large ;  because  in  many  cases  where  it  is  small  an 
adequate  reward  cannot  be  given.^ 

The  court  has,  however,  in  cases  of  derelict,  on  many 
occasions  given  a  proportion  of  one-half  or  one-third 
of  the  property  salved  to  the  salvors.* 

Where  the  property  was  of  small  value,  and  no  owner 
appeared,  it  has  even  directed  that  the  whole  sum  at 
which  it  was  sold  should  be  divided  among  them.* 

1  The  Salacia,  2  Hagg.  262.     See  A.  C,  Nov.  21,  1856;  The  Linga, 

also  The  Aquila,  1  C.  Rob.  37;  Tlie  Mitchell's  Maritime  Register,  Jan. 

Florence,  ubi  supra ;  The  Effort,  3  25,  1852. 

Hagg.  165;   The  Thetis,  2  Kuapp,  *  The  Cargo  ex  Venus,   L.    R. 

409;  The  Minerva,  1  Spinks,  271;  1    Adm.    50,    51;    L'Esperance,    1 

The  Magdalen,  5  L.  T.  n.  s.  807;  Dods.  46;  The  Norma,  Lush.  124; 

The  Berlin,  4  Irish  Jur.   11;  The  The  Blenden  Hall,  1  Dods.  414-423; 

Jane,  5  Irish  Jur.  31;  The  Martin  The  Frances  Mary,  2  Hagg.  39;  The 

Luther,  12  L.   T.   n.    s.   585;  The  Reliance,  2  Hagg.  90,  n. ;  The  Elli- 

Vesta,  2  Hagg.  189;  The  Oscar,  2  .otta,  2  Dods.  75  ;  Tlie  Atlas,  Lush. 

Hagg.  260.  518,  530;  The  Ewell  Grove,  3  Hagg. 

2  The  Caspian,  Shipping  Gazette,  209,   221;    The    Sansome,    3   Irish 

A.  C,  June  30, 1853;  The  Persia,  A.  Jur.  58;  The  Jubilee,  3  Hagg.  43, 

C,  Nov.  11, 1853,  Shipping  Gazette,  n. ;  The  Jonge  Bastiaan,  5  C.  Rob. 

Feb.  11,1853.     See  1  A.  &E.  R.  160;  322;  The  Fortuna,  4  C.  Rob.  193; 

The  Highlander,  before  Chief  Jus-  The  Mary  Anne  (Irish),  11  L.  T. 

tice  Jervis,  April  1,  1856,  Shipping  x.  s.  85. 

Gazette;  The  Secret  r.  The  Juniata,  *  The  Castletown,  5  Irish  Jur. 


SALVAGE.  105 

Salvage  on  derelict  property  is  not  limited  to  a 
moiety,  as  high  as  seventy  per  cent  being  given  in  a 
case  of  extraordinary  merit,  where  the  labor  is  consid- 
erable and  the  value  of  the  saved  property  small.* 

In  the  case  of  Bark  Cleone,  6  Fed.  Rep.  517 
(1881),  Hoffman,  D.  J.,  cited  Tyson  v.  Prior,  1  Gall. 
133;  The  Aquila,  1  C.  Rob.  37-41 ;  The  Bee,  1  Ware, 
336 ;  The  Cosmopolitan,  6  Notes  of  Cases,  Supp.  17  ; 
The  Barefoot,  1  Eng.  L.  &  Eq.  661  ;  The  India,  1  W. 
Rob.  409 ;  The  Lovett  Peacock,  1  Low.  143,  and  said, 
"  To  entitle  a  party  to  salvage,  not  only  must  the  ser- 
vice rendered  be  meritorious,  but  the  possession  taken 
must  be  lawful ;  "  and  further  quoted  Clarke  v.  The 
Brig  Healey,  4  Wash.  656. 

By  quitting  the  vessel,  the  master  and  owner  does 
not  lose  \i\sjus  disponendi  or  right  of  property. 

If  a  vessel  be  found,  though  with  no  one  on  board, 
under  such  circumstances  that  the  persons  assuming 
to  be  salvors  knew,  or  ought  to  have  known,  that 
their  services  were  not  desired,  and  they  take  posses- 
sion with  intent  to  supplant  the  master  and  owners 
in  giving  her  relief,  they  have  no  claim  for  compensa- 
tion.^ 

There  does  not  appear  to  be  any  instance,  except  in 
cases  of  derelict,  where  the  salvors  have  been  decreed 
a  sum  exceeding  a  moiety  of  the  proceeds.^     Although 


379.     See  The  Rutland,  3  Irish  Jur.  Law  Rev.  vol.  xvi.  No.  8,  August, 

283 ;  The  William  Hamilton,  3  Hagg.  1882. 

168,  n.  a  The   Upnor,  2   Hagg.  3;   The 

*  Cargo    from   Wreck   of    Bark  Barefoot,  ubi  supra;  The  India,  1 

Edwards,  12   Fed.  Rep.  509,  July  W.  Rob.  406;  The  Amethyst,   Da- 

11,    1882.     See     The    Hyderabad,  veis,   23.     See  argument  of  counsel 

11    Fed.     Rep.    719    (with    note,  (the  late   Mr.   J.    Curtis)   in    The 

citing  cases    on    Towage    as    Sal-  Island    City.    1    Black,    126;    The 

vage    Service,    Derelict,   and    Pos-  Champion,  Br.  &  Lush.  Adm.  69. 
Besaion  by  Salvors) ;  s.  c.  The  Am.         »  The  Inca,  Swa.  370. 


106  ADMIRALTY  LAW. 

salvors  are  entitled  to  no  specific  proportions  of  the 
property  saved/  and  although  the  remuneration  for  the 
service  is  not  measured  by  the  value  of  the  property, 
but  with  reference  to  all  the  circumstances  of  the  case, 
and  especially  with  reference  to  any  risk  there  may 
have  been  to  human  life,^  the  value  of  the  property, 
nevertheless,  may  materially  affect  the  sum  to  be 
awarded. 

The  court  will  take  into  account  the  fact  that  the 
owners  are  benefited  in  proportion  to  the  value  of  the 
property,  and  when  it  is  large  the  remuneration  is  rel- 
atively great,  not  only  in  consequence  of  its  being  less 
felt  by  the  owners,  but  because  on  many  occasions, 
where  the  property  is  small,  salvors  perform  great 
services  without  adequate  remuneration.^ 

In  ascertaining  the  value  of  the  ship  and  cargo, 
the  general  rule  is  that  the  value  shall  be  taken  at 
the  port  into  which  the  ship  is  carried.  Where,  how- 
ever, salvage  services  were  rendered  to  a  vessel  bound 
for  London,  and  she  was  carried  into  Lisbon,  and 
her  cargo,  which  was  unsalable  there,  was  subse- 
quently transshipped  and  sent  to  London,  it  was 
held  that  the  proper  method  of  arriving  at  the  value 
of  the  cargo  at  Lisbon  would  be  by  putting  it  at  a 
percentage  less  than  the  proceeds  of  its  sale  in  Lon- 
don, and  deducting  the  freight  and  charges  for  the 
voyage  from  Lisbon  to  London,  but  allowing  a  jpro 
rata  freight  as  far  as  London.* 

1  The  Thetis,  3  Hagg.  14;  The  3  Hagg.  90;  The  Syrian,  14  L.  T. 
Salacia,  2  Hagg.  62.  n.  s.  833. 

2  The  James  Dixon,  2  L.  T.  *  The  George  Dean,  Swa.  290. 
N.  8.  696;  The  Thomas  Fielden,  32  See  also  The  Norma,  Lush.  124; 
L.  J.  Adm.  61.  The  Progress,  Edwards,  210 ;   The 

8  The  Earl  of  Eglinton,  Swa.  7;    Cargo  ex  Loodianah,  2  Pritch.  Adm. 
The  Ewell  Grove,  3  Hagg.  209 ;  The    Dig.  736- 
Raikes,  1  Hagg.  246;  The  Hector, 


SALVAGE.  107 

The  value  of  the  property  is  also  to  be  taken  at  the 
time  when  the  vessel  was  first  brought  into  safety,  and 
not  at  any  subsequent  period ;  and  where  a  vessel  and 
cargo,  although  worth  more  than  £1,000,  when  first 
carried  into  port,  in  consequence  of  mismanagement 
realized  barely  more  than  half  that  sum,  the  salvors 
were  held  to  be  entitled,  in  a  question  as  to  jurisdic- 
tion, to  take  the  larger  sum  as  the  value.^ 

A  salvor  must  share  in  the  depreciation  of  the  saved 
property  pending  proceedings  for  adjudication  of  his 
claim ;  loss  by  sale  at  unfavorable  time,  &c.'^ 

In  estimating  the  salvage  upon  freight,  where  the 
services  of  the  salvors  terminate  before  the  completion 
of  the  voyage,  the  court  will  treat  the  freight  as  divisi- 
ble, and  as  though  a  pro  rata  freight  were  payable  at 
the  intermediate  port.^ 

In  ascertaining  the  net  value  of  the  property,  all 
necessary  sale  expenses,  and  the  usual  allowances  in 
respect  of  cargo  and  freight,  and,  as  a  general  rule, 
expenses  by  which  all  parties  interested  in  the  cargo 
are  benefited,  are  to  be  deducted  from  the  gross  value.* 

On  the  other  hand,  the  following  will  not  be  proper 
deductions :  a  bottomry  bond  executed,  necessaries  sup- 
plied, or  wages  due,  before  the  salvage  was  rendered ;  * 
money  paid  on  account  of  freight,®  or  for  primage  or 
insurance,  or  for  the  expenses  of  prosecuting  persons 
who  had  forcibly  dispossessed  the  salvorj 

1  The  Stella,  L.  R.  1  Adm.  340.  Supp.  1,  111;  The  Sabina,  7  Jur. 

«  The  Carl  Schurz,  8  Cent.  L.  J.  182. 
147.  •  The  Fleece,  3  W.  Rob.  278, 

»  The  Norma,  Lush.  124.  282 ;  The  Charlotte  Wylie,  5  Notes 

*  The  Peace,  Swa.  115;  The  of  Cases,  4;  The  Westminster,  1  W. 
Hebe,  7  Notes  of  Cases,  Supp.  113;  Rob.  229-233;  The  Norma,  Lush. 
The  Paul,  L.  R.  1  Adm.  57;  The  124;  The  Fusilier,  10  L.  T.  N.  8. 
Samuel,  15  Jur.  407.  699;  The  Peace,  Swa.  115. 

•  The  Hebe,  7  Notes  of  Cases,         '  The  Fleece,  uhi  supra. 


108  ADMIRALTY  LAW. 

In  the  unreported  case  of  The  Steamship  Louisiana, 
in  the  Eastern  District  of  Louisiana,  Woods,  Circuit 
Justice,  on  the  16th  of  June,  1881,  decreed  that  the 
owners  of  the  barge  "  Tornado  "  should  be  paid  an  addi- 
tional sum  of  $445  for  expenses  incurred  in  rendering 
said  salvage  services. 

Growing  out  of  or  incidental  to  the  case  of  the  New 
Harbor  Protection  Company  v.  Ship  Tornado,  Cargo  and 
Freight,  more  fully  stated  in  another  part  of  this  chap, 
ter,  was  the  case  of  W.  H.  Ellis  et  al.  v.  Cargo  of  the 
Ship  Tornado  (unreported,  and  on  appeal  to  the  United 
States  Supreme  Court). 

The  libellant,  William  H.  Ellis,  was  the  master  of  the 
"  Tornado,"  and  the  libellants,  Robert  A.  Stewart  and 
John  Stewart,  were  her  owners. 

Libellants  paid  for  the  compressing  of  said  cargo  be- 
fore it  was  put  on  board  said  ship,  and  for  stowing  the 
•  same  on  board  and  other  expenses  incident  thereto,  the 
sum  of  $14,278.26. 

The  gross  freight  on  said  cargo,  had  it  been  delivered 
at  its  destination  in  Liverpool,  as  required  by  bills  of 
lading,  would  have  been  £4,169  13^.  \d. 

The  cause  came  on  to  be  heard  in  the  Circuit  Court 
of  the  United  States  for  the  District  of  Louisiana,  on 
appeal  from  the  decree  of  the  District  Court  (Bil- 
lings, J.) 

In  addition  to  the  facts  stated  above,  in  this  case  and 
that  of  the  New  Harbor  Protection  Company  v.  Ship 
Tornado,  Cargo  and  Freight,  the  following  are  necessary 
to  a  clear  comprehension  of  the  decree  of  the  Circuit 
Court,  Woods,  Circuit  Judge,  rendered  March  18, 
1880. 

On  the  19th  day  of  March,  1878,  the  underwriters 
filed  their  claim,  claiming  all  of  said  cargo,  and  pro- 


SALVAGE.  109 

cured  an  order  from  the  judge  of  the  District  Court  to 
be  entered  on  said  claim  suspending  the  right  given  to 
said  W.  H.  ElHs,  master  as  aforesaid,  on  the  6th  of  March, 
1878,  to  bond  such  of  the  cotton  as  was  stored  in  the 
Levee  Cotton  Press,  to  wit,  about  five  hundred  bales, 
until  the  further  order  of  the  court. 

On  March  26, 1878,  the  said  master  and  claimant  not 
having  bonded  said  cotton,  which  by  the  order  men- 
tioned in  the  foregoing  paragraph  he  was  allowed  to 
bond,  a  rule  was  taken  and  duly  served  on  him  to  show 
cause  why  said  order,  so  far  as  it  allowed  him  to  bond 
a  portion  of  said  cotton,  should  not  be  rescinded,  and 
the  movers  of  the  rule,  the  insurers  of  said  cargo,  be 
allowed  to  bond  the  same ;  said  rule  was  heard  on  the 
next  day,  March  27,  by  the  District  Court,  the  mov- 
ers and  the  said  master  and  claimant,  William  H.  Ellis, 
being  represented  by  their  respective  counsel,  and  was 
by  the  court  made  absolute  without  opposition,  and  the 
order  allowing  the  said  master  and  claimant  to  bond 
said  portion  of  said  cargo  was  rescinded,  and  the  mov- 
ers of  the  rule  allowed  to  bond  the  same. 

Five  hundred  and  twenty-three  bales  of  the  cargo  of 
said  cotton,  of  which  twenty-three  arrived  alongside  of 
her  in  the  forenoon  of  the  day  on  which  said  fire  was 
discovered,  and  one  hundred  and  sixty-four  of  which 
were  on  the  levee  or  wharf  alongside  of  the  ship,  ready 
to  be  put  on  board  when  said  fire  was  discovered,  and 
of  which  three  hundred  and  twenty-six  had  been  re- 
moved from  said  ship  by  the  salvors  after  said  fire  was 
discovered  and  before  said  ship  sank,  were  in  an  un- 
damaged and  sound  condition. 

In  consequence  of  said  fire  on  said  ship  "  Tornado," 
and  as  a  result  thereof,  said  ship  was  so  badly  damaged 
that  the  cost  of  her  repair  would  exceed  her  value  when 


110  ADMIRALTY  LAW. 

repaired,  that  she  was  unseaworthy  and  incapable  of 
earning  freight. 

The  five  hundred  and  twenty-three  bales  of  cotton, 
part  of  said  cargo,  which  were  undamaged  and  were 
bonded  by  the  underwriters,  were  appraised  at  the  sum 
of  $19,100,  and  the  gross  proceeds  of  the  sale  of  the 
damaged  cotton,  part  of  said  cargo,  amounting  to 
$116,000. 

Eleven  hundred  and  eighty-five  bales  of  the  dam- 
aged cotton,  part  of  said  cargo,  were  shipped  by  the 
purchaser  at  the  marshal's  sale,  coastwise,  and  to  Phila- 
delphia and  other  cities  of  the  Northern  States,  in  the 
condition  it  came  from  the  ship. 

Two  thousand  eight  hundred  and  ninety-six  bales  of 
said  damaged  cotton  were  sent  to  the  pickeries,  picked, 
dried,  and  rebaled  and  shipped,  —  two  thousand  four 
hundred  and  forty-six  of  said  bales  to  Liverpool,  and 
four  hundred  and  fifty  to  Philadelphia. 

All  the  damaged  cotton  taken  from  said  ship  was 
unmerchantable  cotton,  even  after  it  had  been  picked, 
dried,  and  rebaled ;  that  is,  it  could  not  be  used  for 
making  cotton  cloth,  but  could  only  be  used  for  mak- 
ing felt  hats,  paper,  wadding,  and  such  like  articles, 
having  lost  by  the  submersion  and  drying  a  large  part 
of  its  natural  oil,  its  fibre  being  injured  and  its  weight 
reduced. 

As  a  conclusion  of  law  from  the  facts  found  by  the 
Circuit  Court,  Woods,  Circuit  Judge,  the  court  was  of 
opinion,  and  found, — 

1.  That  the  libellants  have  no  lien  for  freight  on 
said  cargo  of  cotton,  or  the  proceeds  thereof,  in  the 
registry  of  the  court,  or  for  the  said  sum  of  money  ad- 
vanced and  paid  by  them  for  compressing  and  stowing 
said  cargo. 


SALVAGE.  Ill 

2.  That  the  libel  in  this  cause  should  be  dismissed 
at  libellants'  costs. 

A  decree  in  conformity  to  the  foregoing  was  signed 
on  the  8th  of  March,  1880. 

Where,  however,  a  bottomry  bond  was  given,  and 
wages  were  earned  subsequently  to  the  salvage,  they 
were  both  held  to  be  proper  deductions  from  the  value 
of  the  property  as  against  the  salvors.^ 

If  the  vessel  and  cargo  be  arrested,  the  salvors  are 
entitled  to  have  their  value  ascertained  by  appraise- 
ment, unless  the  value  is  agreed  upon  by  all  parties  in 
interest. 

Where  the  amount  o(  a  stipulation  by  the  claim- 
ants of  vessel  and  cargo  for  their  release  is  consented 
to,  the  value  may  be  proven,  as  any  other  fact  in  the 
case. 

Where  the  appraisement  has  been  made,  the  court 
will  not  afterwards  disturb  it.^ 

An  appraisement  in  an  admiralty  case,  made  under 
the  order  of  the  court  and  regularly  returned  and  filed, 
is  the  best  evidence  of  the  value  of  the  matter  in  dis- 
pute, and  cannot  be  overcome  by  affidavits.^ 

It  is  perfectly  competent  for  salvors,  instead  of  leav- 
ing the  amount  of  their  remuneration  to  be  determined 
by  the  court,  to  agree  with  the  master  of  the  vessel  in 
distress  to  render  the  required  assistance  for  a  specified 
sum ;  and  in  such  a  case  they  will  be  bound  by  their 
contract,  and  can  claim  no  more  than  the  stipulated 
amount.*     So,  if  dependent  on  success.** 

1  The  Selina,  2  Notes  of  Cases,  18.         *  The  True  Blue,  2  W.   Rob. 

«  The  Cargo  ex  Venus,  L.  R.  1  176. 
Adm.  50.     See  also  The  R.  M.  Mills,         »  The     Silver    Spray's    Boilers, 

8  L.  T.  N.  8.  543.  Brown,  340.    But  see  the  Marquette, 

«  United  States  v.  The  Union,  4  Brown,  864. 
Cranch,  216. 


112  ADMIRALTY  LAW. 

To  render  such  an  agreement  binding,  however,  it 
is  necessary  that  it  should  be  clear  and  explicit  in  its 
terms.^     It  need  not  be  in  writing.^ 

But  whilst  a  viva  voce  agreement,  if  sufficiently 
proved,  is  binding,  the  court  will  be  unwilling  to  act 
upon  it,  unless  it  consist  of  more  than  loose  conversa- 
tions.^ 

It  must  depend  upon  something  more  than  the 
recollection  of  what  occurred  in  the  course  of  such 
conversation.* 

The  agreement  must  also  state  the  sum  agreed  to  be 
paid.^ 

In  fixing  the  sum,  the  salvors  are  entitled  to  look 
only  at  the  extent  of  danger  to  which  the  property 
is  exposed,  the  degree  of  labor  they  will  have  to  un- 
dergo, the  length  of  time  they  may  be  occupied,  and 
the  risk  to  which  they  may  be  exposed.  They  have  no 
right  to  speculate  as  to  the  value  of  the  cargo ;  and 
even  if  it  be  falsely  represented  by  the  master  as  being 
of  much  less  value  than  it  actually  is,  the  agreement 
will  nevertheless  be  upheld.^ 

With  regard  to  the  condition  of  the  vessel,  although 
the  master,  before  entering  into  the  agreement,  is  not 
obliged  to  point  out  every  circumstance  that  has  oc- 
curred during  the  voyage,'^  there  should  be  no  con- 
cealment, as  the  suppression  of  any  facts  which  might 
affect  the  service,  and  therefore  have  operated  upon 
the  agreement  at  first,  may  vitiate  it.^ 

1  The  Graces,  2  W.  Rob.  294  ;  «  The  William  Lushington,  7 
The  William  Lushington,  7  Notes    Notes  of  Cases,  361. 

of  Cases,  361.  «  The  Henry,  15  Jur.  183,  184. 

2  The  Firefly,  Swa.  240.  '  The  Jonge  Andiies,  Swa.  226, 
8  The  Salacia,  2  Hagg,  262-265.     227. 

*  The  Jane  Anderson,  3  Irish  ^  The  Kingalock^  1  Spinks,  263- 
Jur.  293;  The  Briton,  5  Lish  Jur.  265;  The  Biiton,  5  Irish  Jur.  170, 
170.  The  Canova,  L.  R.  1  Adm.  56. 


SALVAGE.  113 

The  master  of  the  vessel  in  distress  is  authorized  to 
bind  the  owner  by  a  salvage  agreement,^  unless,  indeed, 
the  owner  be  at  hand  at  the  time,  and  give  him  no 
authority.^ 

But  if  the  agreement  be  tainted  with  fraud,  the  court 
will  refuse  to  recognize  it  as  against  the  owner,  and 
has,  in  more  than  one  instance,  set  such  agreement 
aside.* 

The  court  will  not  suffer  the  ignorance  of  a  foreign 
ship-master  to  be  taken  advantage  of  in  the  way  of 
extorting  extravagant  remuneration  from  him  for  as- 
sistance rendered.* 

Contracts  as  to  the  quantum  of  compensation  for  sal- 
vage services  are  binding,  provided  they  are  reasonable 
and  without  fraud  or  mistake. 

Such  contracts,  when  made  with  the  master  of  a  sal- 
vage vessel,  bind  the  vessel  but  not  the  crew,  unless 
made  with  their  consent.^ 

In  view  of  the  absence  of  immediate  necessity  for  the 
agreement  for  assistance,  of  the  exaggeration  of  the 
claim,  of  the  antedating  of  the  written  agreement,  and 
of  consent  between  libellant  and  master  to  throw  the 
whole  expense  on  tlie  cargo,  the  demand  was  held  to 
be  forfeited  as  respects  the  cargo,  and  the  libel  was 
dismissed.* 

The  master  and  owner  of  a  salving  vessel  have  gen- 

*  The  Africa,  1  Spinks,  299;  The  man  v.  Schooner  North  Carolina,  15 
Arthur,  6  L.  T.  n.  s.  556.  Pet.  40. 

»  The  Elise,  Swa.  436.     (Tn  this         *  Tlie  Phoenix  r.  The Viking, 

case  Dr  Lushington  doubted  wheth-  A.  C,  Dec.  19,  1856,  Shippiug  Gaz- 
er,  under  such   circumstances,  the  ette. 

master  had  authority  to  compromise         '  The   Delambre,   9   Fed.    Rep. 

a  salvage  claim.)  775. 

•  The  Generous,  2  L.  R.  Adm.  •  Lowe  p.  The  Titus,  The  Re- 
67;  The  Cms  V.,  Lush.  5S3.  See  porter,  vol.  xiii.  p.  328  (Boston, 
The  Repulse,  2  W.  Rob.  396;  Hous-  1882). 

8 


114  ADMIRALTY  LAW. 

eral  charge  of  the  claim  for  salvage,  and  such  claim 
made  by  them  is  to  be  considered  as  comprehending 
the  claim  for  the  services  of  the  crew.^ 

The  court  will  also  refuse  to  recognize  an  agreement 
where  the  master  improperly  or  recklessly  contracts  to 
pay  the  salvors  an  exorbitant  demand.^ 

Where  a  contract  made  by  the  master  of  the  salved 
vessel  and  the  agent  of  the  salvors  is  deemed  iniqui- 
tous by  the  court,  it  will  not  be  enforced. 

This  was  so  held  in  the  case  of  The  Tornado,  in  the 
United  States  Circuit  Court,  District  of  Louisiana  (un- 
reported) by  Woods,  Judge,  in  a  decree  rendered 
May  24,  1880. 

The  cause  came  on  to  be  heard  upon  the  interven- 
tions of  the  tow-boats  "  Norman,"  "  Rio  Grande,"  and 
"  Harry  Wright,"  and  upon  the  pleadings,  evidence,  re- 
ports, exceptions,  proceedings,  and  decrees  of  the  Dis- 
trict Court,  and  the  new  evidence 'offered  in  the  Circuit 
Court,  and  was  argued  by  counsel. 

On  consideration  whereof  the  court  found  the  follow- 
ing facts  :  — 

The  ship  "  Tornado  "  was  an  English  vessel  of  1,720 
tons  burthen,  and  had  come  to  the  port  of  New  Orleans 
for  a  cargo  of  cotton,  which  she  had  shipped  and  stowed 
away  to  the  amount  of  5,195  bales,  together  with  a 
considerable  quantity  of  staves. 

She  was  almost  ready  for  sea,  and  was  lying  along- 
side of  the  wharf  in  the  third  district  of  the  city  of 
New  Orleans,  at  the  foot  of  Marigny  Street,  when,  on 
Sunday,  the  24th  of  February,  1878,  at  six  o'clock 
A.  M.,  smoke  was  found  coming  out  of  the  main  hatch, 

*  W.  W.  Averill  et  al.  v.  E.  A.     of  Louisiana,  April  Term,  1881  (un- 
Yorke  et  als.,  Pardee,  Judge,  Circuit    reported). 
Court  of  the  United  States,  District         '^  The  Theodore,  Swa.  351. 


SALVAGE.  116 

and  a  number  of  the  crew  were  at  once  sent  to  the 
nearest  fire-alarm  box,  and  the  fire  department  of  the 
city  of  New  Orleans  were  quickly  on  the  spot  The 
main  hatch  having  been  opened,  the  fire-engines  imme- 
diately commenced  to  throw  water  down  the  main 
hatch,  which  they  continued  to  do  until  nine  o'clock 
A.  M.,  when  the  main  hatch  was  closed,  and  the  steam 
gas-boat  "  Protector,"  being  provided  with  apparatus  for 
the  manufacture  of  carbonic  acid  gas,  commenced  to 
attempt  to  extinguish  the  fire,  which  at  that  time  was 
raging  quite  violently  in  the  hold,  by  attempting  to  fill 
the  vessel  with  carbonic  acid  gas.  This  continued  until 
nine  o'clock  p.  m.,  when  the  main  hatch  was  opened, 
and  it  was  found  that  there  was  less  smoke  than  there 
had  been  before  the  experiment  with  the  gas  had  com- 
menced. The  engineer  of  the  "  Protector"  went  down 
the  main  hatch,  and  having  hooked  on  to  some  bales  of 
the  cotton,  they  were  hoisted  up  and  landed  on  the  levee, 
greatly  charred.  In  the  mean  time,  the  fire-engines 
were  pumping  in  water  through  the  hatch-hole,  and  the 
smoke  was  increasing.  A  hole  was  then  cut  in  the  deck 
abreast  the  main  rigging  on  the  starboard  side,  and 
some  fourteen  bales  of  cotton  were  got  out  of  this 
hole.  At  six  o'clock  p.  m.  smoke  was  greatly  in- 
creasing, and  the  hatches  were  again  put  on,  and 
the  hole  in  the  deck  covered,  and  the  "  Protector " 
again  commenced  pouring  carbonic  acid  gas  into  the 
hold  of  the  vessel,  and  continued  doing  so  during  the 
night. 

While  these  things  were  going  on,  the  harbor  tug- 
boats, the  "Continental,"  the  "N.M.Jones,"  the  "Belle 
Darlington,"  the  "Fern,"  the  "Aspinwall,"  the  "Charlie 
Wood,"  the  « Ida,"  the  "  Ella  Wood  No.  2,"  the  "  Joseph 
Cooper,  Jr.,"  and  the  *'  Wasp  "  had  all  got  there,  hear- 


116  ADMIRALTY  LAW. 

ing  that  the  vessel  was  in  peril,  and  were,  with  the  fire 
department,  engaged  in  pouring  water,  with  their 
more  or  less  powerful  pumps,  upon  the  fire,  at  all  times 
when  the  gas  experiments  were  not  going  on.  Arriv- 
ing at  the  scene  of  the  disaster,  some  earlier  than 
others,  they  were  all  there  during  the  whole  of  the 
first  day. 

On  Monday,  the  25th  of  February,  at  six  o'clock  in 
the  morning,  the  main  hatch  was  opened,  and  the  hole 
that  had  been  made  in  the  deck  was  uncovered,  and  the 
smoke  was  found  to  be  greatly  increased  ;  some  thirty- 
two  bales  of  cotton  were  at  this  time  taken  out  by  the 
stevedores.  The  fire  department  were  hard  at  work 
pumping  in  water,  and  several  holes  were  cut  in  the 
decks,  trying  to  get  at  the  seat  of  the  fire.  The  main 
pumps  were  taken  up,  to  allow  the  hose  suction  to  be 
put  down,  and  the  "  Protector  "  and  the  steam-engines 
were  pumping  out  the  water  part  of  the  day ;  but  the 
smoke  kept  on  increasing.  At  six  o'clock  p.  m.  there 
were  twelve  feet  six  inches  of  water  in  the  hold,  and 
the  draft  of  water  aft,  twenty-three  feet  eight  inches, 
and  forward,  twenty-five  feet  six  inches.  At  half- 
past  eleven  p.  m.  the  smoke  was  still  increasing  and 
appearing,  and  the  crew  were  employed  in  landing  the 
sails  and  new  ropes,  sizing  stuff",  and  all  that  could  be 
got  at,  on  the  wharf. 

At  this  time  the  main  store-room  was  so  densely  filled 
with  smoke  that  it  was  impossible  to  get  in  there,  and  the 
crew  were  at  this  business  until  five  o'clock  in  the  morn- 
ing. At  midnight  of  same  day,  a  stevedore  and  his  men 
came  on  board,  shifted  the  chain  cables  and  tore  up  the 
decks  and  carlings  in  order  to  get  at  the  cargo,  took  out 
and  saved  as  many  bales  as  possible,  all  at  the  orders  of 
the  master,  during  all  of  this  day ;  also,  the  various  tug- 


SALVAGE.  117 

boats  that  we  have  named  were  employed  in  pumping 
water  on  the  fire  in  the  hold  of  the  "  Tornado." 

On  Tuesday,  26th  of  February,  1878,  at  six  o'clock 
A.  M.,  Canby,  the  regular  stevedore  of  the  vessel,  and 
his  men  came  on  board  and  landed  the  boats  and  water- 
casks  on  the  wharf,  tore  up  the  forward  deck  and  car- 
lings,  and  commenced  to  save  cargo.  By  noon  the 
stevedore  Drysdale  had  181  bales  landed,  and  Mr.  Canby 
100.  The  fire  department  were  pouring  in  water  dur- 
ing the  night  and  all  the  forenoon,  and  still  the  smoke 
increased,  and  by  noon  the  men  were  forced  to  come 
up  from  the  hold,  and  the  fire  brigade  were  set  to  work 
to  fill  the  ship  with  water  ;  it  having  been  determined 
by  the  captain  that  the  only  chance  of  saving  any  part 
of  the  ship  and  cargo  was  to  fill  her  with  water  and 
sink  her,  it  being  deemed  impossible  to  stop  the  fire 
otherwise  ;  and  about  seven  o'clock  p.  m.  of  Tuesday, 
February  26,  the  ship  sank,  the  water  being  two  or 
three  feet  above  the  main  deck. 

On  February  27,  Ellis,  the  master,  and  Schultze,  the 
agent,  of  the  "  Tornado,"  made  a  contract  with  the 
Tow-boat  Association,  to  which  the  "  Norman,"  "  Rio 
Grande,"  and  "  Harry  Wright "  belonged,  to  pump  out 
the  "  Tornado  "  for  a  compensation  of  fifty  dollars  per 
hour  for  each  boat,  to  be  continued  until  the  boats 
were  discharged. 

After  the  making  of  said  contract,  and  while  the 
"  Tornado  "  still  lay  upon  the  bottom  of  the  river,  the 
"  Protector  "  filed  a  libel  for  salvage  against  the  "  Tor- 
nado "  and  cargo,  and,  by  virtue  of  a  warrant  issued 
on  said  libel,  the  United  States  marshal  seized  the  said 
ship  "  Tornado "  and  cargo  when  the  said  tow-boats 
were  about  to  begin  pumping  her  out. 

After  the  seizure,  the  marshal  took  possession  of  the 


118  ADMIRALTY  LAW. 

"  Tornado,"  and  displaced  the  authority  of  the  master, 
but  permitted  the  said  tow-boats  to  proceed  and  pump 
out  the  "  Tornado." 

The  tow-boats  "  Norman,"  "  Harry  Wright,"  and 
"  Rio  Grande  "  commenced  pumping  out  the  "  Tor- 
nado" early  in  the  evening  of  Feb.  27,  1878,  assisted 
by  other  tugs  and  the  fire  department  of  the  city  of 
New  Orleans,  and  succeeded,  with  said  assistance,  at 
twelve  o'clock  m.  of  February  28,  in  raising  the  "  Tor- 
nado," and  placing  her  in  a  position  of  safety.  The 
efficient  work  of  pumping  out  the  "Tornado"  was 
done  between  six  a.  m.  and  twelve  m.  of  February  28. 

The  said  pumping  service  was  done  without  seri- 
ous danger  to  the  tow-boats  by  which  it  was  ren- 
dered. The  total  valuation  of  the  property  saved  was 
$140,090.75. 

The  value  of  the  tow-boats  "  Harry  Wright,"  "  Nor- 
man," and  "  Rio  Grande,"  in  the  aggregate,  was 
$75,000,  and  their  daily  expenses  were  each  $100, 
when  actually  at  work. 

The  usual  charge  made  by  tugs  in  the  port  of  New 
Orleans  was  from  $6  to  $12  per  hour  for  pumping. 

The  said  tow-boats  remained  alongside  the  "  Tor- 
nado "  after  she  was  raised,  ready  to  render  her  assist- 
ance in  case  it  was  needed,  for  the  period  of  about 
twelve  days ;  but  such  assistance  was  unnecessary,  and 
not  required  by  any  peril  of  the  "  Tornado  "  and  cargo. 

The  three  tow-boats  of  the  appellants,  at  the  time 
of  making  the  contract,  were  out  of  service,  laid  up 
on  the  other  side  of  the  river,  without  crews  or  pro- 
visions, but  were  immediately  manned  and  victualled, 
and  brought  over,  and  laid  alongside  of  the  "  Tor- 
nado "  in  the  afternoon  of  Wednesday,  the  27th  of 
February,  1878. 


SALVAGE.  119 

At  that  time  there  were  no  other  tow-boats  along- 
side of  the  "  Tornado." 

The  said  tow-boats  were  provided  with  machinery 
and  pumps  for  extinguishing  jBres  and  pumping  out 
sunken  ships. 

As  conclusions  of  law  from  the  facts,  the  Circuit 
Court  found,  — 

1.  That  said  contract  made  by  Ellis,  master,  and 
Schultze,  agent,  of  the  "  Tornado,"  with  the  Tow-boat 
Association  for  pumping  out  the  "  Tornado,"  was  in- 
equitable, and  ought  not,  under  the  facts  of  the  case, 
to  be  enforced. 

2.  That  the  service  rendered  by  the  said  tow-boats 
"  Harry  Wright,"  "  Norman,"  and  "  Rio  Grande  "  was 
a  salvage  service,  but  one  of  low  grade. 

3.  That  each  of  said  tug-boats  should  be  allowed  the 
sum  of  $1,000. 

It  was  accordingly  so  decreed;  and  it  was  further 
adjudged  that  the  costs  of  the  appeal  be  paid  out  of 
the  fund  in  the  registry  of  the  court. 

In  this  connection  it  may  be  stated  that  the  claims 
of  these  appellants,  under  the  contracts  made  by  the 
master  of  the  "Tornado,"  which  were  afterward  re- 
vived by  the  marshal  and  carried  out,  were  as  fol- 
lows :  — 

For  the  services  of  the  "Rio  Grande  "  from  six  p.  m., 
February  27,  to  four  a.  m.,  March  12,  —  298  hours, — 
$14,900. 

For  the  services  of  the  "  Norman,"  from  six  p.  m., 
February  27,  to  eight  a.  m.,  March  11,  1878,-278 
hours,  — $13,900. 

For  the  services  of  the  "  Harry  Wright,"  from  ten 
'p.  M.,  February  27,  to  six  A.  m.,  March  9,  —  224  hours, 
—  $11,200. 


120  ADMIRALTY  LAW. 

The  bills,  made  out  accordingly,  were  approved  by 
Ellis,  the  master,  and  by  Schultze  &  Co.,  her  agents. 

The  judgment  of  the  court  below  awarded  to  the 
gas-boat  "Protector"  $7,500,  divided  as  follows:  — 

For  expenses  incurred  in  making  gas  to  pump  into 
the  "  Tornado,"  $2,404.57;  and  of  the  balance,  three- 
fourths,  equalling  $3,821.58,  to  the  owners  of  the  gas- 
boat,  and  one-fourth  thereof,  equalling  $1,275.85,  to 
the  crew.  The  "  Norman,"  "  Rio  Grande,"  and  "  Harry 
Wright"  were  each  allowed  $1,000,  —  one  half  to  the 
owners,  and  the  other  half  to  the  crew.  Various 
smaller  sums  were  awarded  to  other  tow-boats  and 
parties. 

The  court  of  admiralty  will  also  refuse  its  sanction 
to  agreements  for  the  salvage  of  the  ship  irrespective 
of  the  cargo  on  board ;  and  upon  such  an  agreement 
being  proved  it  will  refuse  to  pronounce  any  salvage 
whatever  to  be  due.* 

"  A  contract  made  by  the  master  with  salvors  for  the 
recovery  of  the  cargo  of  a  sunken  vessel,  sustained." 
"  Parties  may  agree  upon  the  amount  of  a  salvage 
compensation,  or  on  the  principles  upon  which  it  shall 
be  adjusted ;  and  such  agreements,  if  fairly  made,  and 
no  advantage  be  taken  of  ignorance  or  distress,  are 
readily  upheld  by  the  courts." 

Harley  v.  Four  Hundred  and  Sixty-seven  Bars  of 
Railroad  Iron,  1  Sawyer,  p.  1,  and  cases  there  cited 
on  p.  2  ;  The  Helen  and  George,  Swa.  368  ;  The 
Firefly,  Swa.  240;  CoUins  v.  Fort  Wayne,  1  Bond, 
476 ;  The  Henry,  2  Eng.  L.  &  Eq.  564.  See  Central 
Law  Journal,  vol.  viii.  p.  390 ;  Housman  v.  Schooner 
North  Carolina,  15  Pet.  40. 

"  It  is  well  settled  that  courts  of  admiralty  will  not 
1  The  Westminster,  1  W.  Rob.  229,  235. 


SALVAGE.  121 

allow  a  salvor  to  take  advantage  of  his  situation,  and 
to  avail  himself  of  the  calamities  of  others  to  drive  a 
bargain ;  but  yet  they  will  enforce  a  contract  made  for 
salvage  services  and  salvage  compensation,  where  the 
salvor  has  not  taken  advantage  of  his  power  to  make 
an  unreasonable  bargain." 

Bark  J.  G.  Paint  and  Cargo,  1  Ben.  545-550 ;  The 
Waverley,  L.  R  3  Adm.  &  Ecc.  369. 

If,  on  the  other  hand,  the  agreement  should  be  unjust 
or  inequitable  towards  the  salvors,  the  court  will  refuse 
to  recognize  it.^ 

Where  the  owners  of  a  vessel  to  which  valuable  ser- 
vices had  been  rendered  whilst  she  was  in  a  position 
of  considerable  danger  alleged  that  the  salvors  had 
agreed  to  do  the  work  for  85.  M.,  the  court,  regard- 
ing this  amount  as  futile,  gave  the  salvors  £10  and 
costs  ;^  although  the  master  of  the  salving  vessel 
has  authority  to  bind  his  owner  by  a  salvage  agree- 
ment.* 

As  far  as  the  other  salvors  are  concerned,  the  agree- 
ment only  binds  such  of  them  as  are  parties  to  it. 
Thus,  where  an  agreement  was  made  by  the  master  of 
a  salving  vessel  with  the  owner  of  the  vessel  salved  as 
to  the  quantum  of  salvage  to  be  paid,  it  was  held  to  be 
binding  on  the  master  and  his  employers,  but  not  upon 
the  crew,  it  having  been  made  without  their  sanction 
or  concurrence.* 

1  The   Phantom,   L.  R.  1    Adm.  15;  The  British  Empire,  G  Jur.  608; 

58.    See  also  The  %Villiam  and  John,  The  Firefly,  Swa.  240;   The  Helen 

9  Jur.    N.   8.   284.     And  see   The  and  George,  Swa.  368;  The  Result- 

Kingalock,  1  Spinks.  263-265,  and  atet,  17  Jur.  353. 
The    Medina,    19    Eng.   Rep.    545         «  The    Africa,    1    Spinks,   299, 

(1876).  300. 

"  The  Phantom,  uhi  supra.     See         *  The   Britain,   1   W.   Rob.  40. 

The   True   Blue,   2   W.  Rob.   176;  See   The  Sarah  Jane,  2  W.  Rob. 

The   Enchantress,   30   L.  J.  Adm.  110. 


122  ADMIRALTY  LAW. 

On  the  same  principle,  an  agreement  with  part  of  a 
crew  of  a  salving  ship  has  been  held  to  be  not  binding 
upon  the  others  not  concurring  in  it.^ 

Where  an  understanding  was  come  to  between  the 
owner  of  a  vessel  salved  and  the  owner  of  a  cutter 
engaged  by  them  to  render  the  service,  and  no  speci- 
fied sum  was  named  in  it,  it  was  held  not  to  bar  the 
proceedings  of  the  master  and  crew  of  the  cutter,  who 
acted  under  the  personal  direction  of  the  owner  of  the 
cutter,  but  were  not  parties  to  or  cognizant  of  the  un- 
derstanding.^ 

If  a  salvage  agreement  be  proved,  the  court  will  up- 
hold it,  unless  it  be  clearly  inequitable  ;  and  it  is  no 
answer  to  the  agreement  to  say  that  the  bargain  is  a 
hard  one  upon  the  salvors.^ 

It  is  no  answer  to  say  that  greater  difficulties  than 
were  anticipated,  in  consequence  of  the  change  of 
weather,  attended  its  performance.* 

Nor  is  it  any  answer  to  say  that  the  weather  became 
tempestuous,  or  the  vessel  was  longer  in  arriving  in 
port  than  might  have  reasonably  been  expected.^ 

Nor,  on  the  other  hand,  can  the  owner  of  the  vessel 
receiving  assistance  refuse  to  pay  the  amount  stipulated 
for,  on  the  ground  that  the  salvage  services  were  at- 
tended with  less  difficulty  than  had  been  anticipated, 
unless,  indeed,  the  sum  happen  to  be  so  grossly  exorbi- 
tant as  to  amount  to  evidence  of  bad  faith  or  fraud, 

1  The  Sansome,  3  Irish  Jur.  *  The  True  Blue,  2  W.  Rob. 
258;  The  Charlotte,  3  W.  Rob.  68-    176,  180. 

74.  «  The  True    Blue,   2   W.  Rob. 

2  The  William  Lushington,  7  176, 180.  See  also  The  Jonge  An- 
Notes  of  Cases,  361.  See  also  The  dries,  Swa.  226;  The  Cato,  35  L.  J. 
Elise,  Swa.  436.  n.  s.  556 ;   The  Nuova  Loanese,  17 

8  The   Firefly,    Swa.    240.     See    Jur.  263;  The  Resultatet,  17  Jur. 
also  The  Helen  and  George,  Swa.    353. 
368. 


SALVAGE.  123 

which  of  themselves  would  induce  the  court  to  set 
aside  the  agreement.^ 

The  burden  of  proof  of  the  agreement  is  on  the 
party  setting  it  up  ;  but  when  once  it  is  proved,  the 
onus  is  shifted  upon  those  who  dispute  its  validity.^ 

If  a  salvage  agreement  has  been  abandoned  by  the 
mutual  consent  of  the  parties  or  abandoned  by  the 
party  setting  it  up,  or  if  it  be  so  founded  in  fraud  or 
misrepresentation  that  the  court  would  hold  it  to  be 
void,  it  will  afford  no  answer  on  the  part  of  owners  to  a 
suit  for  salvage,  or  on  the  part  of  salvors  to  a  defence 
of  tender.^ 

The  party  alleging  the  cancellation  of  the  agreement 
is  bound  to  prove  the  fact  by  a  clear  preponderance  of 
testimony.* 

Where  the  salvors  make  separate  claims  against  the 
ship  and  cargo,  an  agreement  out  of  court  between 
them  and  the  owners  of  the  ship,  fixing  the  amount  of 
remuneration,  is  not  conclusive  on  the  court  in  award- 
ing the  amount  due  from  the  owners  of  the  cargo.^ 

Where  the  owners  of  the  vessel  salved  set  up  an 
agreement  in  bar  of  a  salvage  claim,  they  must  pay  into 
court  the  sum  stipulated  for  in  the  agreement.* 

Customs  and  usages  of  the  sea  authorize  the  master 
to  employ  his  vessel  and  crew  in  a  salvage  service  in 
rescuing  property  from  destruction.'^ 

1  The  Helen  and  George,  Swa.  897;  The  Betsey,  2  W.  Rob.  167- 
368.  172;  The  Samuel,  15  Jur.  407;  The 

2  The  Helen  and  George,  Swa.  Africa,  1  Spinks.  299;  The  Crus  V., 
368-370;  The  Resultatet,  17  Jur.  Lush.  583;  The  Theodore,  Swa. 
353;   The  Nuova  Loanese,  17  Jur.  351. 

263;  The  Arthur,  6  L.  T.  n.  s.  556;         «  The  Emma,  8  Jur.  657. 

The     Theodore,    Swa.    351  ;    The         •  The    Catherine,    6    Notes    of 

Graces,  2  W.  Rob.  294.  Cases.  Supp.  xliii-lii. 

»  The  Samuel,  15  Jur.  407;  The         '  Roff  v.  Wass,  2  Sawyer,  395; 

Africa,  1  Spinks,  299.  The    Boston,    1    Sumn.   328;   The 

*  The  Repulse,  2  W.  Rob.  396,  Ceuturion,  1  Ware,  483. 


124  ADMIRALTY  LAW. 

Parties  may  agree  on  the  amount  of  compensation, 
or  on  the  principles  on  which  it  shall  be  adjusted ;  and 
such  agreements,  if  fairly  made,  and  no  advantage  be 
taken  of  ignorance  or  distress,  are  upheld.^  But  in- 
equitable agreements  will  not  be  enforced.^ 

Where  neither  fraud  nor  oppression  is  shown,  though 
it  be  contingent,  and  be  for  a  sum  much  less  than  the 
court  would  have  awarded,  an  agreement  will  be  up- 
held.^ And  this,  although  it  may  prove  hard  on  the 
salvors.* 

Where  the  rate  in  a  contract  is  exorbitant,  the  con- 
tract will  not  be  upheld.^ 

An  agreement  may  be  made  by  the  master  of  a  ves- 
sel in  distress,  provided  there  is  a  clear  understanding 
of  the  nature  of  the  agreement,  made  with  fairness  and 
impartiality  to  all  concerned ;  ^  as  for  the  recovery  of 
the  cargo  of  a  sunken  ship,^  or  to  labor  for  the  rescue 
of  the  ship  from  an  impending  peril,^  or  for  service.' 

*  Harley  v.  Bars  of  Railroad  Iron,         *  The   Silver  Spray's  Boilers,  1 

1  Sawyer,  2;  The  Emulous,  1  Sumn,    Brown  Adm.  349. 

207;    The    Independence,   2   Curt.         «  Tons  of  Coal,  7  Ben.  343. 
350 ;   Bearse  v.  Pigs  of  Copper,  1         •  Collins   v.    The    Fort  Wayne, 

Stoi-y,  314;  The  A.  D.  Patchin,   1  1   Bond,  482;    The   True   Blue,   4 

Blatchf.    414;   The    True    Blue,    4  Moore  P.  C.  C.  96;   8.  c.  2  W.Rob. 

Moore   P.  C.  C.   96;   The   Henry,  176;   The   Lady  Flora  Hastings,  3 

2  Eng.  L.  &  Eq.  564.  W.  Rob.  120. 

2  The  Wexford,  6  Ben.  119.  ^  Harley  i;.  Bars  of  Railroad  Iron, 

'  Harley  i;.  Bars  of  Railroad  Iron,  1   Sawyer,   1;  The  Reward,   1  W. 

1   Sawyer,   1;   Bowley  u.    Goddard,  Rob.    174;   The   Princess   Alice,    3 

1    Low.    157;    The    True   Blue,    4  W.    Rob.    138;    The    Emulous,   1 

Moore  P.  C.  C.  96  :  a.  c.  2  W.  Rob.  Sumn.  207  ;  The  Centurion,  1  Ware, 

176;    The    Catherine,    6   Notes  of  477. 

Cases,  113;  The  Mulgrave,  2  Hagg.         ^  The  Williams,  1  Brown   Adm. 

Adm.   78;   Bondies  v.    Sheerwood,  216;  The  A.  D.  Patchin,  1  Blatchf. 

22  How.  214;  The  British  Empire,  414.     And  see  The  Independence, 

6  Jur.   608;   The   A.   D.  Patchin,  2  Curt.  350. 

1    Blatchf.   414;    The    Helen    and         •  The  Betsey,  7  Jur.  755;  The 

George,  Swa.  368;  The  Enchantress,  Emulous,  1  Sumn.  210. 

1   Lush.   93;   Eads  v.   The  H.  D. 

Bacon,  Newb.  274. 


SALVAGE.  125 

An  agreement  will  not  be  enforced  where  the  salvor 
has  taken  advantage  of  his  power  to  make  an  unrea- 
sonable bargain.^ 

A  contract  for  salvage  made  by  a  master,  the  sunken 
boat  being  within  easy  reach  of  all  parties  interested, 
must  be  closely  scrutinized.^ 

The  true  rule  of  construing  salvage  contracts  is,  that 
they  shall  be  presumed  prirna  facie  to  be  fair ;  but  if 
proven  to  be  unconscionable,  the  court  would  refuse  to 
enforce  them.' 

Salvage  contracts  must  not  only  be  fairly  and  hon- 
estly made,  but  the  evidence  must  show  a  definite  and 
explicit  bargain.* 

The  contract  is  enforceable  as  it  stands,  when  it  is 
free  from  all  fraud,  deception,  mistake,  or  circumstances 
of  controlling  necessity ;  and  any  claim  for  salvage  will 
be  denied.^ 

If  there  is  a  hiring  or  bargain,  without  fraud  or  mis- 
take, the  terms  of  such  agreement  are  adhered  to  as 
the  rule  of  computation  ;  but  if  no  agreement  is  made, 
remuneration  is  awarded  with  regard  to  considerations 
appropriately  governing  salvage  cases.* 

1  Post  V.  Jones,  19  How.  160;  Brown  Adm.  355;  The  Whitaker, 
The  Emulous,  1  Suran.  210;  The  1  Sprague,  229;  The  True  Blue', 
Silver  Spray's  Boilers,  1  Brown  4  Moore  P.  C.  C.  90;  s.  c.  2  W. 
Adm.  354;  The  John  G.  Paint,  1  Rob.  176;  The  Henry,  2  Eng.  L. 
Ben.  550;  The  A.  D.  Patchin,  1  &  Eq.  564;  The  Phantom,  L.  R. 
Blatchf.  414.  1   Adm.  58;  The  Salacia,  2  Ha^g. 

2  Tons  of  Coal,  7  Ben.  343.  Adm.  262  ;     The   A.    D.  Patchin, 
'  The  H.  D.  Bacon,  Newb.  279.    1  Blatchf.  414;   Bearse   v.  Pigs  of 

But  see    The    Emulous,    1   Sumn.  Copper,   1    Story,   314;    The  Mar- 

207;   Bearse  v.   Pigs  of   Copper,   1  quette,  1  Brown  Adm.  369;  Squirfi 

Story,  314;  Schultz  t>.  The  Nancy,  v.  Tons  of   Iron,  2   Ben.  21;   The 

Bee,  139.  Independence.  2  Curt.  350. 

*  Bowley  r.    Goddard,    1    Ix)w.  «  The  H.  B.  Foster,  Abb.  Adra. 

157;  The   Salacia,  2  Ilagg.   Adm.  229;   The   Britain.   1  W.   Rob.  50; 

282.  The   Betsey,  2  W.  Rob.  167;  The 

»  The  Silver  Spray's  Boilers,  1  True  Blue,  4  Moore  P.  C.  C.  96; 


126  ADMIRALTY  LAW. 

An  agreement  for  specific  compensation  does  not 
alter  the  nature  of  the  service,  but  furnishes  a  rule  of 
compensation,  especially  where  the  compensation  de- 
pends on  success.^ 

It  is  none  the  less  a  maritime  contract,  because  the 
compensation  did  not  depend  on  the  result.^ 

A  contract  for  a  mere  attempt  is  inconsistent  with  a 
salvage  service.' 

Where  there  is  a  contract  on  certain  stipulations, 
the  party  contracting  cannot  abandon  it  and  claim 
salvage.* 

Where  services  are  performed  in  pursuance  of  an 
express  contract,  no  action  in  rem  can  be  maintained 
therefor.^ 

Nothing  short  of  a  contract  to  pay  a  given  sum  for 
the  services  to  be  rendered,  or  a  binding  engagement 
to  pay  at  all  events,  whether  successful  or  unsuccess- 
ful, will  operate  as  a  bar  to  a  meritorious  claim  for 
salvage.^ 

The  Mulgrave,  2  Hagg.  Adm.  78;         »  The  Mulgrave,  2  Hagg.  Adm. 

The  Traveller,  3  Ilagj?.  Adm.  370;  78;  The  Louisa  Jane,  2  Low.  297. 
The  Zephyr,  2  Hagg.  Adm.  43.  *  Bondies  v.  Sheerwood,  22  How. 

1  The  Silver  Spray's  Boilers,  1  216;  The  Mulgrave,  2  Hagg.  Adm. 
Brown  Adm.  354;  The  Marquette,  78;  Harley  v.  Bars  of  R.  R.  Iron, 
1  Brown  Adm.  371 ;  The  William  1  Sawyer,  1 ;  Collins  v.  The  Fort 
Lushington,  7  Notes  of  Cases.  361;  Wayne,  1  Bond,  481. 

The  Catherine,  6  Notes  of  Cases,  »  The  A.  D.  Patchin,  1  Blatchf. 

43;   Thft  A.  D.  Patchin,  1  Blatchf.  421;   Bearse  v.  Pigs  of   Copper,   1 

229;    The    Independence,   2   Curt.  Story,  314. 

3.50;    The    Whitaker,    1    Sprague,  «  Collins  v.   The   Fort  Wayne, 

229;  Williams  ».  The  Jenny  Lind,  1    Bond,    481;   The    Independence, 

Newb.  443:  The  Camanche,'3  Wall.  2  Curt.  350:  The  Camanche,  8  Wall. 

477;    The  Emulous.  1    Sumn.  207;  477;   Adams  r.  The    Island   City,  1 

Collins  17.  The  Fort  Wayne,  1  Bond,  ClifE.  216;  The  H.  B.  Foster,  Abb. 

481.  Adm.  222;  The  Versailles,  1  Curt. 

2  The  Circassian,  2  Ben.  172;  3.53;  The  Centurion,  1  Ware,  477; 
The  A.  D.  Patchin,  1  Blatchf.  414;  The  William  Lushington,  7  Notes 
The  Susan,  1  Sprague,  504;  The  of  Cases,  361;  Cromwell  v.  The 
Versailles,  1  Curt.  353.  Island  City.  1  ClifE.  223  ;   The  Mul- 


SALVAGE.  ^  127 

The  evidence  must  show  a  definite  and  explicit 
bargain.^ 

The  presumption  is  that  the  services  were  rendered 
for  a  salvage  compensation ;  but  this  may  be  rebutted 
by  evidence.' 

On  a  conflict  of  positive  statements,  and  under  the 
surrounding  circumstances,  an  agreement  for  a  stipu- 
lated price  was  held  to  have  been  made.^ 

Where  a  salvage  agreement  is  that  a  vessel  shall  be 
paid  a  designated  price  "  for  every  bale  which  should  be 
recovered  by  her  and  brought  to  Mobile,"  a  reasonable 
interpretation  includes  the  delivery  or  tender  of  the 
cotton  to  the  other  contracting  party.  It  is  not  suffi- 
cient that  the  vessel  held  the  cotton  under  her  sal- 
vage lien  until  taken  by  third  parties  under  legal 
proceedings.* 

The  following  interesting  decision,  bearing  upon  sal- 
vage contracts,  was  rendered  by  Judge  Pardee,  of  the 
United  States  Circuit  Court,  Nov.  25,  1881  :—- 

W.  S.  Lombard  v.  Steamship  Delambre  and  Cargo.  In  ad- 
miralty, on  appeal.  The  services  rendered  by  the  various 
tug-boats  and  vessels,  and  their  officers  and  crews,  in  and  of 
the  '*  Delambre,"  were  undoubtedly  salvage  services.  So  far 
as  they  were  rendered  under  specific  contracts,  those  con- 
tracts should  be  the  guide  in  fixing  the  compensation  for 
such  salvage  services ;  provided  they  are  reasonable,  and 
without  fraud  or  mistake,  and  beaiing  in  mind  that  contracts 
only  bind  parties  and  privies. 

grave,  2  Hagg.  Adm.  78;   Coffin  r.  ^  Bowleyr.  Gloddard,  ILow.  157; 

The  John  Shaw,  1  Cliff.  230;  The  The  Salacia,  2  Hagg.  Adm.  262. 

White   Star,   Law    Rep.  1   Adm.  &  ^  Bowleyi'.  Goddard,  1  Ix)W.  157; 

E.  68;  The  Susan,  1  Sprague,  449;  The  Versailles,  1  Curt.  353. 

The  Phantom,  Law  Rep.  1  Adm.  &  «  Dominy  v.  The  Anchors,  1  Ben. 

E.  58;  The  Saratoga,  1  Lush.  318;  77. 

The  Louisa  Jane,  2  Low.  303;   The  *  Morgan  v.  United  States,  14  Ct. 

Whitaker,   1    Sprague,    229;    The  of  Claims,  442. 

Independence,  2  Curt.  350. 


128  *  ADMIRALTY  LAW. 

A  contract  as  to  the  quantum  of  salvage  made  with  the 
master  of  a  salvage  vessel  will  bind  the  vessel,  but  not  the 
rest  of  the  crew,  if  made  without  their  sanction  and  concur- 
rence. 1  W.  Rob.  40 ;  2  W.  Rob.  110,  115 ;  and  this  rule  is 
regarded  in  this  case. 

If  the  owner  desires  to  set  up  a  contract  in  defence, 
he  does  so  with  a  tender.^ 

On  payment  of  the  money  into  court,  the  decree 
goes  for  him.'^ 

Salvage  may  be  barred  by  contract.' 

On  the  loss  of  an  injured  vessel,  the  master  is  the 
joint  agent  of  owner  and  insurer,  and  of  all  concerned, 
and  is  bound  to  make  the  best  contract  he  can  for  sal- 
vage ;  and  the  insurers  and  owners  are  bound  by  what- 
ever contract  he  makes.* 

The  amount  of  salvage  reward  formerly  awarded 
was  larger  than  that  at  present  decreed.  The  ten- 
dency of  the  courts  is  now  to  decree  less  compensation. 
The  human  mind  is  like  a  pendulum,  vacillating  from 
one  side  to  the  other.  In  the  older  cases  the  salvage 
may  have  been  too  liberal ;  now,  in  my  humble  judg- 
ment, some  of  the  more  recent  cases  err  the  other 
way. 

In  the  case  of  The  Circassia  v.  The  City  of  Richmond, 
Mitchell's  Maritime  Register,  Feb.  27,  1880,  p.  271 
(London),  Sir  R.  J.  Phillimore  said  :  — 

This  is  a  case  of  salvage,  in  which  the  most  remarkable 
circumstance  is  the  immense  value  of  the  property  salved, 

1  The  Louisa  Jane,  1  Low.  300;  2  xhe  Louisa  Jane,  2  Low.  300; 

The  True  Blue,  4  Moore  P.  C.  C.  The  Mulgrave,  2  Hagg.  Adm.  78; 

90;  The  Jonge  Andries,  Swa.  226-  The  Catherine,  6  Notes  of  Cases, 

303;  The  Henry,  2  Eng.  L.  &  Eq.  Supp.  43. 

564;  The  CrusV.,  Lush.  583;  The  «  Bowley  v.  Goddard,  1  Low.  157. 

William    Lushington,    7    Notes    of  *  Emerigon,  tome  ii.  ch.  17,  §  7. 

Cases,  361;  Dominy  r.  The  Anchors,  And  see  2  Arnould  on  Insurance, 

1  Ben.  77.  3d  ed.  (Loudon,  1866),  p.  728. 


SALVAGE.  129 

which  amounts  to  more  than  half  a  million  of  money.  Of 
course  that  circumstance  can  in  no  way  affect  the  principles 
on  which  the  court  has  always  proceeded  in  awarding  sal- 
vage remuneration.  It  is  a  circumstance  to  be  taken  into 
consideration,  but  is  not  to  be  allowed  to  weigh  upon  the 
court  as  to  the  proper  proportion  of  salvage  to  be  awarded. 
The  "  Circassia  "  was  asked  to  tow  the  "  City  of  Richmond  " 
to  New  York,  which  her  master  declined  to  do,  for  good  rea- 
sons ;  but  he  offered  to  tow  her  to  Halifax,  only  two  hundred 
and  forty  miles  off,  and  that  offer  was  accepted,  and  it  seems 
that  he  performed  this  service  skilfully  and  effectually.  There 
is  considerable  merit  to  be  awarded  to  the  captains  of  both 
ships  for  the  manner  in  which  the  ropes  were  got  on  board, 
and  the  towage  service  put  in  order.  The  statement  in  the 
thirteenth  paragraph  is,  that  "  By  the  services  aforesaid  the 
'  City  of  Richmond,'  her  cargo  and  freight,  and  the  lives  of 
her  crew  and  passengers,  were  saved."  That  is,  in  our  opin- 
ion, an  extravagant  statement ;  but  no  doubt  she  was  in  a 
position  of  considerable  risk  at  the  time  when  the  "  Circassia  " 
came  up  to  her.  She  had  drifted,  during  the  time  between 
the  breaking  of  the  screw  shaft  and  the  coming  up  of  the 
*'  Circassia,"  some  sixty-nine  miles  to  leeward,  and  the  elder 
brethren  point  out  to  me  that  there  was  little  chance  of  her 
having  got  to  New  York  with  whatever  canvas  might  have 
been  employed  on  her,  considering  the  state  of  the  weather 
at  that  time  of  the  year.  She  might  have  got  back  to  Eng- 
land, but  it  would  have  been  at  a  considerable  loss  of  time 
and  expenditure  of  money.  The  service  was,  therefore,  on 
looking  to  all  the  circumstances,  a  very  valuable  service. 
Nor  is  it  to  be  left  out  of  consideration  that  both  vessels  had 
a  great  number  of  passengers  on  board,  which  increased  the 
res[)onsibility  of  their  captains.  The  case  has  been  very  fairly 
stated  on  both  sides,  and  there  has  been  no  attempt  made  to 
deny  the  main  facts  of  the  case,  or  to  diminish  the  merit  of 
the  service.  It  lasted  in  point  of  time  about  fifty-four  hours  : 
it  began  on  the  21st,  at  3.30  in  the  morning,  and  the  vessel 
came  to  anchor  at  Halifax  at  9.40  on  the  morning  of  the 
24th.     The  question  is,  what  amount  of  reward  the  court 

9 


130  ADMIRALTY  LAW. 

ought,  having  regard  to  all  the  circumstances,  to  apportion. 
I  have  not  been  sorry  to  have  had  the  advice  of  the  elder 
brethren  on  this  subject,  and  I  shall,  bearing  in  mind  all  the 
principles  on  which  the  court  acts  in  these  cases,  and  consid- 
ering that  the  value  of  the  property  was  more  than  half  a 
million,  award  the  sum  of  X  7,000  to  the  salvors. 

In  the  unreported  case  of  The  Steamship  Louisiana, 
No.  9156  of  the  docket  of  the  Circuit  Court  of  the 
United  States,  Fifth  Circuit  and  Eastern  District  of 
Louisiana,  the  District  Court  awarded  six  per  cent  sal- 
vage. On  appeal  to  the  Circuit  Court,  Woods,  Circuit 
Justice,  on  the  16th  of  June,  1881,  found,  as  a  conclu- 
sion of  fact,  that  the  services  rendered  by  the  steam- 
tugs,  barges,  and  dredge-boat,  and  their  officers  and 
crews,  were  salvage  services;  but  that,  in  performing 
them,  said  officers  and  crews  were  not  exposed  to  per- 
sonal danger. 

And,  as  a  conclusion  of  law,  the  court  found  that 
there  should  be  a  decree  in  favor  of  the  libellants  and 
intervenors  against  said. steamship  "Louisiana"  for  four 
and  a  half  per  cent  of  the  value  of  said  steamship  and 
her  salved  cargo  ;  to  wit,  four  and  a  half  per  cent  on 
$700,000,  amounting  to  $31,500. 

In  the  case  of  The  Truro,  United  States  District  Court 
for  the  District  of  South  Carolina,  heard  by  Magrath,  J. 
(manuscript,  not  reported),  that  learned  judge  said  :  — 

"  Every  regard  is  had  for  the  labors  and  dangers  of 
the  salvors. 

"•  If  the  recompense  is  excessive  or  the  service  over- 
rated, the  ship-owner  would  find  in  the  salvage  a  mis- 
fortune only  in  degree  less  than  that  with  which  he  was 
threatened." 

Salvage  on  the  Florida  Coast.  —  From  a  pamphlet  pub- 
lished in  New  York,  in  the  year  1861,  I  extract  the 


SALVAGE.  131 

following,  being"  from  a  decision  by  Judge  Marvin,  of 
the  District  Court  of  the  United  States,  Southern  Dis- 
trict of  Florida,  Key  West.  This  decision  is  not  con- 
tained in  Judge  Marvin's  admirable  treatise  on  the  law 
of  Wreck  and  Salvage,  which  was  published  in  1858. 

My  object  in  making  this  extract  is  to  illustrate  that 
the  amount  of  salvage  varies  with  the  circumstances, 
and  means  or  instruments ;  also  to  show  the  usual  rates 
of  salvage  decreed  by  Judge  Marvin.  The  case  was 
that  of  James  Pent  et  al.  v.  Ship  Ocean  Belle  and  Cargo. 
On  page  4  of  the  pamphlet  the  report  reads :  — 

What  would  be  no  move  than  reasonable  on  this  coast, 
where  so  many  shipwrecks  occur,  and  where  the  assistance 
of  so  few  transient  or  trading  vessels  can  be  had  to  save  the 
property,  and  where,  consequently,  the  employment  of  a 
number  of  regular  wrecking-vessels  has  been  found  neces- 
sary for  that  purpose,  might  be  unreasonably  large  in  the 
neighborhood  of  commercial  ports,  on  the  coast  of  England 
or  the  United  States,  or  in  any  place  where  regular  wrecking- 
vessels  were  unnecessary,  because  wrecks  were  fewer,  and 
the  assistance  of  transient  pei'sons  or  vessels  could  be  more 
easily  obtained. 

On  page  6  et  seq.  of  that  pamphlet  we  find  the  fol- 
lowing observations,  which  are  not  contained  in  Judge 
Marvin's  treatise :  — 

We  will  now  advert  to  a  number  of  cases,  by  way  of  show- 
ing what  have  been  the  usual  rates  of  salvage  decreed  hy  this 
court.  We  shall  select  the  cases  indifferently  from  the  two 
classes  of  cases,  first,  from  that  wheie  the  vessel  was  saved, 
and  second,  where  it  was  lost. 

The  ship  "  Courier,''  laden  with  three  thousand  and 
twenty-four  bales  of  cotton,  got  ashore  on  Carysfort  reef,  and 
lay  in  an  exposed  situation.  The  master  carried  out  his  own 
anchors,  after  which  the  weather  became  bad  and  the  crew 
insubordinate.      Six    wrecking- vessels,    carrying    sixty-two 


132  ADMIRALTY  LAW. 

men,  carried  out  another  anchor,  lightened  the  ship  of  nine 
hundred  bales,  and  heaved  the  ship  off.  They  were  em- 
ployed several  days  in  performing  the  service,  the  weather 
being  too  bad  to  work.  The  ship  and  cai-go  were  valued 
at  $140,000,  and  $19,000  were  decreed  for  salvage. 

The  case  of  the  ship  "  Ocean  Star  "  was  decided  in  1860. 
This  ship,  laden  with  two  thousand  five  hundred  and  ninety 
bales  of  cotton,  went  ashore  on  the  outer  side  of  Brewster 
reef,  —  a  dangerous  reef  situated  near  Cape  Florida.  Four 
wrecking- vessels  and  a  number  of  fishing-boats,  possessing  an 
Siggregdte  tonnage  of  four  hundred  and  one  tons,  and  carrying 
sixty-seven  men,  carried  out  three  anchors  and  lightened  the 
ship  of  five  hundred  and  eighty-three  bales.  The  master  left 
the  ship  as  soon  as  the  first  wrecking-vessel  was  loaded  (very 
improperly  as  the  court  thought),  to  go  to  Key  West,  to  make 
arrangements  with  his  consignee.  The  ship  was  in  a  very 
dangerous  situation,  demanding  the  utmost  care  and  skill 
to  extricate  her.  The  wreckei-s  exercised  both,  and  saved 
the  ship  and  cargo.  She  leaked  badly,  requiring  constant 
pumping  on  her  way  to  this  port.  The  ship  and  cargo  were 
valued  at  1106,000.  Salvage,  $16,500.  Seamen's  shares, 
$95. 

The  schooner  "  Maria  Pike,"  laden  with  cotton  and  mo- 
lasses, ran  ashore  on  North  Key  Flats,  one  of  the  Tortugas 
shoals.  Three  smacks,  carrying  twenty  men,  went  to  her 
assistance.  They  found  the  master  employed  in  staving  his 
deck  load  of  molasses  to  lighten  the  vessel.  She  was  lying 
easy,  but  surrounded  with  intricate  and  extensive  shoals. 
On  the  arrival  of  the  smacks,  the  master  ceased  the  business 
of  staving  the  casks  of  molasses,  and  the  next  morning  forty 
barrels  of  molasses  were  put  on  board  one  of  the  smacks,  and 
sail  being  made,  she  went  off  the  reef  into  deep  water  by  an 
inner  channel,  known  to  the  salvors,  but  unknown  to  the 
master.  Considerable  skill  and  good  judgment  were  displayed 
by  the  salvors  in  managing  the  sails  to  get  the  vessel  clear 
of  the  shoals,  and  in  subsequently  piloting  the  vessel  through 
the  channel  out  to  sea.  The  master  could  have  got  the  ves- 
sel afloat  by  throwing  overboard  the  forty  barrels  of  molasses, 


SALVAGE.  133 

but  he  could  not  have  got  her  out  of  her  difficulties  without 
a  pilot.  The  court  said :  "  The  chief  value  of  the  services 
consisted  in  the  piloting,  which  very  likely  was  the  means  of 
saving  the  vessel  and  cargo."  The  value  of  vessel  and  cargo 
was  estimated  at  $32,000.    The  salvage  was  $3,200.     Shares, 


The  bark  "  Laura  Russ  "  was  stranded  on  Alligator  reef  in 
1860,  laden  with  an  assorted  cargo.  Two  wrecking-vessels 
and  several  boats,  carrying  in  all  twenty-eight  men,  carried 
out  two  anchors  and  partly  loaded  one  of  the  vessels.  They 
then  heaved  her  off,  warped  her  some  distance  into  deep 
water,  and  brought  her  to  this  port.  Value,  $24,000.  Sal- 
vage, $3,000. 

In  the  following  cases  the  vessels  were  lost :  — 

The  ship  "  Eliza  Mallory  "  was  wrecked  in  1860,  on  the  coast 
north  of  Cape  Florida,  laden  with  four  thousand  nine  hundred 
and  twenty-three  bales  of  cotton,  weighing  one  hundred  and 
eighty  pounds  each.  Twelve  wrecking-vessels  were  employed 
various  and  different  lengths  of  time  —  some  one  week,  some 
five  —  in  saving  the  cargo.  The  water  in  the  ship  came  up 
about  two  feet  over  the  lower  deck,  so  that  all  the  cotton  saved 
from  the  lower  hold  was  saved  by  diving  ;  but  the  diving  was 
attended  with  less  difficulty  than  is  usual  in  cases  where  the 
bales  are  larger.  The  whole  cargo  saved  was  valued  at  $56,- 
445.  The  total  salvage  allowed  was  $16,241.'  The  rates  of 
salvage  were  one-fifth  on  the  dry,  one-third  on  that  partly  wet, 
and  two-fifths  on  that  saved  by  diving  ;  one-third  was  allowed 
on  the  stores  and  materials.    The  shares  varied  from  $21  to  $77. 

The  British  ship  "  Yucatan  "  was  lost  near  Cape  Florida, 
laden  with  an  assorted  cargo.  Nine  large  wrecking- vessels 
were  employed  to  save  the  cargo.  Forty-three  per  cent  was 
allowed  for  salvage,  which  made  the  average  shares  $62. 

The  ship  "  Brewster"  was  lost  near  Cape  Florida, laden  with 
cotton.  The  cargo  was  saved  by  twelve  vessels,  carrying  one 
hundred  and  thirty- three  men.  The  salvage  was  one-third. 
Shares,  $50. 

Where  the  value  of  the  cargo  and  materials  saved  has 
been  comparatively  small,  and  more  than  one  or  two  wreck- 


134  ADMIRALTY  LAW. 

ing-vessels  have  been  employed,  the  court  has  been  in  the 
habit  of  allowing  fortj'-five  and  fifty  per  cent  for  salvage,  in 
order  to  compensate  for  the  labor :  as,  in  the  case  of  the  ship 
"Nathan  Hanau,"  where  the  value  saved  was $4,554.39,  forty- 
five  per  cent  was  allowed  ;  and  in  the  bark  ''  Thales,"  where 
the  value  was  $2,105,  one-half  was  allowed. 

The  most  usual  rate  of  salvage,  in  this  court,  for  saving 
cotton  where  the  ship  was  lost  has  been  twenty-five  per  cent 
on  the  dry,  forty  per  cent  on  the  wet,  saved  without  actual 
diving,  but  taken  out  from  under  the  water,  and  fifty  per 
cent,  and,  in  some  few  instances,  fifty-five  and  sixty  per  cent, 
for  saving  it  by  diving  in  the  lower  hold;  as,  in  the  cases  of 
the  "  Mulgrave,"  the  "  Indian  Hunter,"  the  "  Mary  Coe," 
the  "Cerro  Gordo  "  and  others. 

Less  is  allowed  on  Western  rivers  tbian  on  the  high 
seas,  because  the  peril  of  life  is  less.^ 

In  the  case  of  The  Miranda,  4  Mar.  Law  Cases,  440, 
3  Law  Rep.  Adra.  &  Ecc.  561  (1872),  she  became  dis- 
abled at  sea  by  an  accident  to  her  machinery,  and  was 
towed  into  port  by  the  "Roxana,"  a  vessel  belonging  to 
the  same  owners.  The  "  Roxana  "  was  occupied  in  tow- 
ing the  "  Miranda  "  from  about  half-past  six  p.  m.  on  the 
13th  of  October  to  half-past  eight  A.  m.  on  the  17th. 
The  owners  of  the  "  Roxana  "  claimed  salvage  on  the 
cargo  of  the  "  Miranda."  The  weather  was  fine,  and 
the  service  performed  without  danger.  The  value  of 
the  "Miranda"  was  £15,000;  freight  in  course  of  be- 
ing earned,  £1,875';  cargo,  £15,000. 

On  that  value  Sir  Robert  Phillimore  decreed  to  the 
owners  of  the  "  Roxana  "  £350,  to  be  paid  out  of  the  pro- 
ceeds of  the  cargo.  And  he  said  :  "  Remembering  that 
the  ship  was  the  principal  agent  in  rendering  the  sal- 
vage service,  I  shall  award  to  the  master  and  crew  £120, 

^  Mattinglyy.  Three  Hundred  and  Circuit,  Tennessee,  1878,  8  Cent. 
Fifty-seven  Bales  of  Cotton,  Sixth    Law  Jour.  227. 


SALVAGE.  135 

to  be  paid  out  of  the  proceeds  of  the  ship,  freight  and 
cargo."  The  judge  was  asked  to  apportion  the  sum  of 
£120,  and  he  apportioned  it  as  follows :  £70  to  the  mas- 
ter, and  the  residue  to  the  crew  according  to  their  rating. 

In  the  case  of  The  P.  M.  S.  Co.  v.  Ten  Bales  of  Cot- 
ton, 3  Sawyer,  187  (1879),  $16,000  was  awarded  as 
salvage  compensation  where  both  vessels  belonged  to 
the  same  owner. 

The  suit  was  brought  against  a  portion  of  the  cargo  of 
the  "Colima"  for  a  salvage  compensation,  with  the  un- 
derstanding that  the  court  should  determine  the  whole 
amount  of  salvage,  if  any,  to  be  paid  by  the  cargo. 
Both  vessels,  the  "Arizona"  and  the  "Colima,"  belonged 
to  the  same  owner,  the  Pacific  Mail  Steamship  Company. 

The  total  contributory  value  was  $1,200,000. 

The  "Colima"  broke  three  blades  of  her  propeller,  was 
detained  on  her  voyage  two  and  a  half  to  three  days.  The 
"Arizona"  towed  her  about  seven  hundred  and  thirty 
miles.  The  service  seems  to  have  been  somewhat  severe 
and  straining  upon  the  "  Arizona."  She  sustained,  how- 
ever, no  serious  injury.  Sixteen  thousand  dollars  were 
awarded  to  be  paid  by  the  owners  of  the  cargo  laden 
on  board  the  "  Colima." 

The  proctor  who  desires  to  read  further  than  is  con- 
tained in  this  book  as  to  the  amount  of  salvage  awards 
may  read,  as  I  have,  a  statement  of  values,  amounts 
of  awards,  and  statement  of  circumstances,  in  six  hun- 
dred and  fifty-seven  cases,  in  "  A  Digest  of  Maritime 
Cases  from  1837  to  1860,"  by  A.  Young,  London,  1865. 

Many  of  these  cases  have  been  cited  by  me. 

Section  V.  —  APPORTIOXMENT  AND  DELAY. 

As  a  general  rule,  it  is  much  better  for  all  parties 
that  the  apportionment  of  salvage  among  the  salvors 


136  ADMIRALTY  LAW. 

should  be  made  by  the  court,  rather  than  by  the  par- 
ties themselves.^ 

Owners  of  salving  vessels,  in  making  distribution  of 
salvage  between  themselves  and  the  officers  and  crew 
of  the  vessels,  should  do  so  with  great  caution,  and 
after  the  fullest  explanation  of  all  the  facts  to  the 
parties  interested.^ 

If  done  otherwise,  the  court  will  set  the  distribution 
aside.^ 

No  action  lies  at  common  law  for  apportionment  of 
salvage  ;  and  where  salvage  had  been  paid  to  the  mas- 
ter of  a  vessel  that  had  rendered  salvage  services,  and 
one  of  the  seamen  sued  the  master  in  a  court  of  com- 
mon law  for  his  proportion  as  money  received  to  his 
use,  it  was  held  that  the  action  was  not  maintainable.* 

The  apportionment  of  the  salvage  rests  entirely 
in  the  discretion  of  the  court,  and  no  precise  rule  can 
be  laid  down  as  to  the  proportions  which  the  court  will 
allot ;  and  in  ordinary  cases  the  officers,  seamen,  and 
apprentices  composing  the  crew  of  the  salving  vessel 
participate  in  proportion  to  their  wages.  This  has  been 
the  practice  of  the  United  States  District  Court  for  the 
District  of  Louisiana,  and  it  is  generally  referred  to  a 
commissioner  of  the  court  to  report  upon  the  propor- 
tion to  which  each  is  entitled  of  the  amount  awarded 
to  the  whole  of  them,  according  to  their  wages  on  the 
shipping  articles. 

This  report  is  subjected  to  exceptions  or  opposition, 
and  the  court  confirms,  rejects,  remands,  or  modifies 
the  report,  as  to  it  seems  meet  and  proper. 

The  rule  that,  in  ordinary  cases,  seamen  and  ap- 
prentices composing   the  crew  of  the   salving  vessel 

1  Sonderbiirg  v.  The  Tow  Boat         «  Ibid. 
Company,  3  Woods,  143.  *  Atkinson  v.  Woodhall,  1  H.  & 

^  Ibid.  C.  170. 


SALVAGE.  137 

participate  in  proportion  to  their  wages,  prevails  in 
England.^ 

If,  however,  any  of  the  salvors  have  incurred  greater 
risk  or  rendered  greater  services,  than  the  others,  a 
larger  yhare  will  be  given. 

Thus,  in  the  case  of  The  Suliote  (unreported), 
Justice  Bradley,  in  the  United  States  Circuit  Court  for 
Louisiana,  awarded,  out  of  the  salvage  decreed,  to  the 
officers  and  crew  of  one  of  the  salving  vessels,  the 
"  Maud  Wihnot,"  two  months'  wages  ;  to  another, 
the  "  Belle  Darlington,"  three  months'  wages ;  and  to 
the  third,  the  "  Protector,"  four  months'  wages.^ 

The  practice  is  the  same  in  England,  —  to  give  larger 
share  to  any  of  the  salvors  who  have  incurred  greater 
risk  or  rendered  greater  services  than  the  others.^ 

The  master  of  the  salving  ship,  upon  whom  rests  the 
whole  responsibility  of  employing  the  ship  in  the  ser- 
vice, generally  receives  a  larger  proportion  of  the  sal- 
vage than  any  of  the  crew.*  And  such  is  the  practice 
in  the  Louisiana  district 

There  being  as  to  this,  also,  no  fixed  rule,  reference 
to  the  scale  of  distribution  in  some  of  the  more  mod- 
ern cases,  in  which  a  large  proportion  has  been  awarded 
to  the  master,  may  be  found  useful.^ 

1  The  Pride  of  Canada,  Br.  &  •  The  Saint  Nicholas,  Lush.  20. 

Lush.  208.     See  also  The  Louisa,  2  See  also  The  Sir  Ralph  Abercrombie, 

W.  Rob.  22;  The  Martha,  3  Hapg.  L.  R.  1  P.  C.  454;  The  Nicolina,  2 

43  i ;  The  Albion,  3  Hagg.  254 ;  The  W.  Rob.  175 ;  The  Golondrina,  L.  R. 

Earl  Grey,  3  Ilagg.  383 ;  The  Colura-  1  Adra.  334. 

l.ia,  3  Ilagg.  428;  The  Hoiie,  3  Hagg,  *  The  Martin  Luther,  Swa.  287. 

423;  The  Jane,  5  Irish  Jur.  31 ;  The  See  also  The  Enchantress,  Lush.  93; 

Caroline,  7  Jur.  6(50 ;   The  George  The  Earl  Grey,  3  Hagg.  363. 

Dean,  Swa.  290 ;  The  Two  Friends,  »  The  Martin  Luther,  Swa.  287. 

2  W.  Rob.  349;  The  Columbine,  2  See  also  The  Enchantress,  Lush.  93; 

W.  Rob.  186.  The  Earl  Grey,  3  Hagg.  363;  The 

'  The  Henry  Ewbank,  1  Sumn.  Himalaya,  Swa.  575;  The  Howard, 

400;  La  Belle  Creole,  1  Pet.  31 ;  The  3  Hagg.  256,  n. ;  The  True  Blue, 

Cato,  1  Pet.  48.  L.  R.  1  P.  C.  250;  The  Ragastha, 


138  ADMIRALTY  LAW. 

In  the  above-cited  case  of  The  True  Blue,  L.  R. 
1  P.  C.  250,  out  of  a  total  salvage  of  £1,500,  £1,000 
of  which  was  given  to  the  owners  of  the  salving  ves- 
sel, the  salvage  having  been  in  reality  chiefly  per- 
formed by  her,  £200  was  given  to  the  master,  and 
£300  among  the  crew. 

Upon  the  same  principle,  where  a  pilot,  assisted  by 
boatmen,  rendered  salvage  service  to  a  ship  in  distress, 
the  court  awarded  him  twice  as  much  as  each  of  the 
boatmen  received.^ 

The  mate  has  also  been  frequently  awarded  a  larger 
proportion,  where  his  duties  have  been  rendered  more 
onerous  in  consequence  of  the  salvage  service.^ 

Where  the  mate  chiefly  contributes  to  the  success 
of  the  service,  the  share  allotted  to  him  may  be  as 
large  as,  or  even  larger  than,  that  of  the  master.^ 

In  the  case  of  The  Suliote,  herein  previously  cited 
(unreported),  in  the  United  States  District  Court  for 
the  District  of  Louisiana,  Michael  Higgins,  one  of  the 
intervening  libellants,  claimed  reward  in  the  nature  of 
salvage  for  services  rendered  as  diver.  It  was  urged, 
in  denial  of  his  claim,  that  his  services  were  rendered 
under  a  contract  made  with  the  master  of  the  "  Pro- 
tector" for  his  services  for  the  sum  of  twenty-five  dol- 
lars. The  testimony  tended  to  show  that  the  cotton 
in  the  hold  of  the  ship  was  still  afire  when  Higgins 
went  down  into  the  hold  and  broke  out  the  cotton, 

Swa.  171 ;  The  Paris,  1  Spinks,  289,  See   also,   for  examples   of    appor- 

See  also  The  Albion,  3  Hagg.  254;  tionment  among  salvors.  The  Pride 

The  Defiance,  3  Hagsf.  256.  of  Canada,  B.  &  L.  208  ;  The  Saint 

1  The  Nicholaas  Witzen,  3  Hagg.  Nicholas,  Lush.  29;  The  Two  Tees, 
369.  Lush.  505;  The   Perla,   Swa.  230; 

2  The  Sir  Ralph  Abercrombie,  The  Spirit  of  the  Age,  Swa.  286; 
L.  R.  1  P.  C.  454,  462.  The  Himalaya,  Swa.  515;  TheBrit- 

«  The  Nicolina,  2  W.  Rob.  175;    ain,  1  W.  Rob.  45. 
The  Grolondrina,  L.  R.  1  Adm.  334. 


SALVAGE.  139 

and  that  several  of  the  bales  sent  up  by  him  were  still 
burning. 

Mr.  Justice  Bradley  said  :    "  We  concur  with  the 
District   Court   in  awarding   to   Higgins   the   sum  of 


A  master  of  a  vessel  is  authorized  in  going  to  the 
rescue  of  a  wrecked  vessel,  and  all  who  are  ready  and 
willing  to  engage  in  the  service  are  entitled  to  share 
in  the  reward.^ 

All  who  materially  contribute  to  the  saving  are  enti- 
tled to  share? 

The  cargo,  freight,  &c.,  saved,  constitute  one  fund 
or  subject  of  salvage.^ 

The  reward  for  enterprise,  personal  skill,  risk,  &c., 
can  be  awarded  only  to  the  individuals  by  whom  the 
service  is  performed.* 

A  passenger  who  assisted  in  saving  the  property  is 
entitled  to  a  portion  of  the  salvage.^ 

Passengers  who  are  bold  to  undertake  a  salvage  ser- 
vice upon  a  derelict,  and  active  to  assist,  are  entitled 
to  an  increased  share  ;  but  those  who  refuse  to .  assist 
when  solicited  are  not  entitled  to  share  in  the  award.® 

If  apprentices  are  sailors,  they  are  entitled  to  their 
shares ;  ^  and  the  master  cannot  claim  their  shares.® 

The  shipper  of  the  cargo  is  not  entitled  to  salvage 
earned  in  the  voyage,  unless  the  stoppage  and  devia- 
tion were  authorized  by  him." 

1  The  Centurion,  1  Ware,  4.77;  ">  Mason    r.    The    Blaireau,    2 

The  Baltimore,  2  Dods.  132.  Cranch,  240. 

«  The  Blackwall,  10  Wall.  1.  «  Waterbnry  v.  Myrick,  Blatchf. 

«  The  Ottawa,  1  Low.  274.  &  IL  4.3. 

*  Union  Towboat  Co.  v.  The  Del-  »  The  Nathaniel  Hooper,  3  Sumn. 
pho8,  Xewb.  412.  581  ;  2  Law  Rep.  165;  Bond  v.  The 

'Bond   V.  The   Cora,   2  Wash.  Cora,2  Wash.  C.  C.  80;  2Pet.  Adm. 

C.  C.  80;  2  Pet.  Adm.  361.  361;   Taylor  v.   The  Cato,  1  Pet 

•  The  Charles  Henry,  1  Ben.  8;  Adm.  48. 
The  Baltimore,  2  Dods.  132. 


140  ADMIRALTY  LAW. 

Where  the  master  and  owners  of  a  tug  presented 
their  bill  in  the  name  of  the  tug  and  her  owner  for 
salvage,  it  must  be  construed  as  covering  the  services 
of  the  crew,  who,  together  with  the  vessel  and  its 
machinery,  constituted  the  efficient  agency  that  per- 
formed the  salvage  service.^ 

And  the  receipt  of  the  salvage  by  them  renders 
them  accountable  to  the  crew  for  their  share  of  the 
same.^ 

When  the  benefit  received  will  warrant  it,  the  sal- 
vor will  be  entitled  to  share  to  a  greater  or  less 
degree  in  the  benefit.' 

Equal  shares  will  be  given  to  the  master  and  pilot 
of  a  sailing-vessel.* 

When  two  vessels  come  up  together  to  render  assist- 
ance, all  persons  composing  the  crews  are  entitled  to 
share  .** 

Simply  lying  by,  or  consorting  with  another  ship,  if 
by  contract,  will  sustain  the  claim.^ 

In  the  case  of  several  salvors,  all  are  entitled  to 
share  in  the  reward.' 

The  division  should  be  in  proportion  to  the  merits 
of  each,*  the  share  depending  largely  on  the  nature 
of  the  effort,^  and  when  the  benefit  received  will  war- 
rant it.^'^ 

1  Roff  V.  Wass,  2  Sawyer,  538.       The  Pride  of  Canada,  Blatchf.  &  H. 

2  Roff  r.  Wass,  2  Sawyer,  538;  208;  The  Bentley,  Swa.  198;  Nor- 
Studley  V.  Baker,  2  Low.  205.  ris    v.    The   Island   City,    1    Cliff. 

»  The  W.  F.  Garriaon,  1  Low.  219. 

139.  8  The  Henry  Ewbank,  1  Sumn. 

*  Brooks  V.  The  William  Penn,  421;  The  Jonge  Bastiaan,  5  C.  Rob. 

2  Hughes,  145.  287. 

8  The  Mountaineer,  2  W.  Rob.  7.  »  The  Albion  Lincoln,  1  Low.  76 ; 

«  The  Williams,    Brown   Adm.  The  Santipore,  1  Spinks,  231. 

226;  The  Underwriter,   4   Blatchf.  ^  The    Genessee,    12   Jur.    401; 

94.  The  Atlas,  1  Lush.  518;  The  E.  U., 

7  The  Blackwall,  10  WaU.  12;  1  Spinks,  63. 


SALVAGE.  141 

The  distribution  made  by  award  of  parties  appointed 
by  the  court  is  conclusive.^ 

Cases  may  arise  in  which  officers  and  crews  of  naval 
vessels  may  be  entitled  to  salvage;  but  something  more 
than  the  usual  peril  should  be  encountered,  and  for  ex- 
traordinary exertions.^ 

As  to  distribution  to  vessels  in  the  navy,  see  U.  S. 
Rev.  Stat.  §§  4642,  4652. 

They  will  be  entitled  to  salvage,  but  to  a  less  amount 
than  to  private  persons.^ 

But  where  the  delay  caused  is  slight,  and  no  unus- 
ual hardship  or  peril  is  encountered,  they  are  not  enti- 
tled to  salvage.* 

It  will  be  seen  in  another  chapter  that  the  compen- 
sation claimed  for  a  salvage  service  may  be  diminished 
or  entirely  forfeited  by  the  misconduct  of  the  salvors  ; 
and  there  seems  to  be  no  reason  why  the  same  rule 
should  not  apply  to  the  case  of  an  individual  salvor  who 
has  been  guilty  of  any  act  calling  for  such  punishment. 
This  course  has  been  followed  in  the  United  States. 

In  The  Waterloo,  Blatchf.  &  Howl.  114,  the  court 
reduced  the  master's  share  to  that  of  a  common  sea- 
man ;  and  in  The  Blaireau,  2  Cranch,  240,  the  share 
of  the  master  was  held  to  be  entirely  forfeited  on  the 
ground  of  embezzlement  and  the  share  of  the  mate 
reduced  to  that  of  a  common  seaman. 

General  misconduct  will  not,  however,  affect  the  right 

1  The  Henry  Ewbank,  1  Sumn.  Lustre,  3  Ilagg.  Adm.  154;  Le  Tigre, 

428;McDonoughi;.  Uannery,  3Dall.  3   Wash.    C.    C.    567;    The   Mary 

188.  Ann,  1  Hag^.  Adm.  158;  The  Wave, 

«  The  Josephine,  2  Blatchf.  328;  Blatchf.  &  H.  243. 
The  Gage,  6  C.  Rob.  273;  The  Lord         «  The   Mulhouse,  12  Law  Rep. 

Nelson,  Edw.  Adm.  79;  The  Pensa-  n.  8.  276,  quoted  in  the  Shipping 

miento  Feliz,  Edw.  Adm.  115;  Unit-  Gazette,  April  25,   1860,  from  the 

ed  States  v.  The  Amistad,  15  Pet.  New  Orleans  Price  Current  of  March 

518;  The  Thetis,  3  Hagg.  Adm.  14;  28,  1860. 
The  Helene,  3  Uagg.  Adm,  430;  The         *  The  Josephine,  2  Blatchf.  828. 


142  ADMIRALTY  LAW. 

of  a  seaman  to  his  proportion  of  salvage.  The  miscon- 
duct charged  against  him  must  have  been  in  connection 
with  the  salvage  service  itself.^ 

If  the  crew  of  another  vessel  be  on  board  the  salving 
vessel,  as  passengers,  at  the  time  of  the  salvage,  and 
assist  in  the  service,  they  will  be  entitled  to  be  remu- 
nerated. In  one  instance,  the  court  allotted  to  pas- 
senger-seamen a  much  smaller  sum  than  it  did  to  the 
regular  crew  of  the  salving  vessel.^ 

In  a  more  recent  case,  the  court  directed  that  four 
foreign  seamen  and  their  captain,  who  were  on  board 
the  salving  vessel  as  passengers,  and  assisted  in  the 
salvage,  should  share  equally  with  the  able-bodied  sea- 
men, their  captain  receiving  a  double  share.^ 

The  court  of  admiralty  has,  from  time  immemorial, 
held  all  the  persons  composing  the  crew  of  the  salving 
vessel,  if  ready  and  willing  to  join  in  the  enterprise, 
entitled  to  share  in  the  salvage  awarded,  even  although 
a  part  of  the  crew  only  were  engaged  in  the  service. 
In  the  distribution  of  the  amount,  however,  it  has  re- 
peatedly made  a  distinction  in  favor  of  those  who  have 
actually  incurred  the  difficulty  and  peril  of  the  enter- 
prise.* 

And  if  part  of  the  crew  of  a  vessel  be  placed  on  board 
a  ship  in  distress,  whose  crew  has  been  reduced  by 
death  or  sickness,  those  who  remain  on  board  the  sal- 
ving ship  are 'en  titled  to  a  share  of  any  salvage  remu- 
neration awarded.^ 

1  The  Centurion,  Ware,  490.  See  Notes  of  Cases,  4;  The  Jane, '2  Hagg. 
also  Blake  v.  Patten,  3  Shep.  173.        338;  The  Centurion,  Ware,  490. 

2  The  Salacia,  2  Hagg.  262-271.         *  The   Sarah  Jane,  2  W.  Rob. 
8  The  Perla,  Swa.  2.30-232.    See    110-115. 

also   The  Hope,  3  Hagg.  423;  The         «  The  Roe,  Swa.  84.     See  also 

Salacia,   2   Hagg.   262;    The    Brig  The  Janet  Mitchell,  Swa.  Ill ;  The 

Cora,  2   Wash.    80;   The   Blaireau,  Nicolina,  2  W.  Rob.  175;  The  Bal- 

2  Cranch,  240;  The  Mountaineer,  2  timore,  2  Dods.  132;  The  Sansome, 

Cranch,  7;  The  Charlotte  Wylie,  5  3  Irish  Jur.  258. 


SALVAGE.  143 

In  the  unreported  case  of  The  Steamship  Tjouisiana, 
in  the  Eastern  District  of  Louisiana,  on  the  16th  of 
June,  1881,  Woods,  Circuit  Justice,  decreed  that  those 
members  of  the  crew  of  the  "  Bailey  "  who  were  ready 
and  wiUing  to  go  with  her  to  the  rescue  of  the  "  Lou- 
isiana," but  were  detained  by  no  fault  of  theirs,  should 
share  as  other  members  of  the  crew  in  the  award. 

The  right  of  the  portion  of  crew  remaining  on  board 
the  salving  vessel  to  participate  in  the  salvage  is,  how- 
ever, confined  to  those  who  are  willing  to  assist ;  and 
if  any  of  them  refuse  their  help,  they  will  be  excluded 
from  any  share  .^ 

In  the  unreported  case  of  The  Louisiana,  in  the 
Eastern  District  of  Louisiana,  16  June,  1881,  Woods, 
Circuit  Justice,  found  as  a  conclusion  of  fact  that  the 
services  rendered  by  the  steam-tugs,  barges,  and 
dredge-boats,  and  their  officers  and  crew,  were  salvage 
services;  but  that,  in  performing  them,  said  officers 
and  crew  were  not  exposed  to  personal  danger.  The 
amount  of  the  decree  was  $31,500,  to  be  distributed 
as  follows :  — 

To  the  owners  of  the  barge  "  Margery  C." $300 

To  fifteen  men  composing  her  crew,  $40  each  ....     600 

To  the  owners  of  the  barge  "  Tornado  " 800 

For  their  expenses 445 

To  two  men,  her  crew,  $40  each 80 

To  the  owners  and  crews  of  the  seven  tugs,  two-thirds 
of  $29,775,  say  $19,850,  five-sixths  thereof  going  to 
theownei-s,  and  one-sixth  to  the  crew,  of  each  tug. 
The  balance  remaining,  $9,925,  was  awarded  to  the 
owners  and  crew  of  the  steam-dredge  "  Bailey,"  nine- 
tenths  thereof,  say  $8,932.50,  to  the  owners,  and  one- 
tenth,  say  $992.50,  to  her  crew. 

»  The  Baltimore,  2  Dods.  132. 


144  ADMIRALTY  LAW. 

Each  case  of  salvage  must  stand  on  its  own  merits, 
with  regard  to  the  rate  of  distribution  between  owners 
and  crew ;  but  regard  should  be  paid  to  the  value  and 
time  of  service  of  each.^ 

In  a  suit  instituted  to  recover  salvage  reward  in  re- 
spect of  services  rendered  in  towing  a  disabled  vessel 
into  safety,  the  court  awarded  a  total  sum  of  £4,000, 
of  which  £3,000  was  apportioned  to  the  owners.^ 

Modern  text-writers,  without  an  exception,  uphold 
the  right  of  the  owners  of  ships  and  vessels,  whether 
propelled  by  steam  or  otherwise,  to  claim  salvage  com- 
pensation when  such  services  are  rendered  by  their 
vessels,  whether  they  are  present  or  absent  at  the  time 
the  service  is  performed;  and  the  author  of  the  latest 
work  published  upon  the  subject  states  that  one-tenth 
of  all  the  salvage  awards  collated  in  the  digest  of  the 
decisions  in  admiralty  by  the  English  courts  are  to 
owners  and  vessels,  boats,  tugs,  and  steamers.  Assum- 
ing his  estimate  to  be  correct,  it  appears  that  thirty-five 
cases  collated  in  that  work  recognize  owners  as  salvors, 
and  twenty-five  the  vessels  themselves  as  entitled  to 
such  compensation.^ 

In  the  case  of  James  Boyle  et  at  v.  The  Steamship 
Teutonia  (unreported),  No.  9056  of  the  docket  of  the 
United  States  Circuit  Court  for  the  District  of  Louisi- 
ana, June  16,  1881,  Woods,  Circuit  Justice,  decreed 
that  the  crew  should  recover  each  one  month's  wages. 

The  importance  of  encouraging  the  employment  of 
steam-vessels  in  salvage  enterprises  has  led  to  a  modi- 
fication of  the  old  rule  apportioning  one-third  to  the 

1  The  Key  West,  11  Fed.  Rep.  »  The  Camanche,  8  Wall.  473; 
911,  Nov.  25,  1881.  Robert's  Adm.  103;  2  Pritch.  Dig. 

2  The  Kenmure  Castle.  The  Law  727-900;  2  Parsons  on  Shipphig, 
Reporter,  Part  5,  May  1,  1882,  Pro-  277,  278;  The  Blaireau,  2  Cranch, 
bate  Division,  p.  47  (London).  269;  The  Ewbank,  1  Sunin.  426. 


SALVAGE.  145 

owner  and  two-thirds  to  the  crew.  The  owner  of  a 
steamer  fitted  for  and  employed  in  salving  vessels  may 
well  be  allowed  a  larger  share  than  one-third.  In  this 
case  three-fifths  of  the  award  was  decreed  to  the  own- 
ers, and  two-fifths  among  master,  officers,  and  crew.^ 

The  rule  for  the  apportionment  of  salvage  adopted 
in  the  Circuit  Court,  as  announced  in  Sonderburg  v. 
Tow  Boat  Company,  3  Woods,  146,  to  give  one  half  to 
the  salving  vessel,  and  the  other  half  to  her  officers  and 
crew,  in  proportion  to  their  rates  of  wages,  was  recog- 
nized and  followed  in  W.  W.  Averill  ei  al.  v.  E.  A.  Yorke 
et  als.,  by  Pardee,  J.,  United  States  Circuit  Court,  Lou- 
isiana District,  April  Term,  1881  (unreported). 

In  the  case  of  The  Bowen,  5  Ben.  296,  Judge 
Blatchford  awarded  $3,000  for  salvage,  of  which  he 
gave  to  the  owners  $1,600,  to  the  master  $450,  $650 
to  the  first  mate,  —  who  took  charge  of  the  vessel  after 
the  master  was  killed  in  an  affray  on  board,  the  sec- 
ond mate  so  hurt  as  to  be  incapable  of  doing  duty, 
and  the  first  mate  seriously  hurt,  —  and  the  remaining 
$300  was  paid  to  the  crew,  according  to  their  wages. 
In  that  case  the  only  contest  was  as  to  the  amount  to 
be  awarded,  the  owners  being  willing  to  make  ample 
compensation  for  the  services  rendered ;  and  the  court 
cites  approvingly  the  case  of  Williamson  v.  The  Al- 
phonso,  1  Curt.  376  ;  The  Czarina,  2  Sprngue,  48, 
where  '$5,485  was  awarded,  of  which  the  owners  re- 
ceived $3,500,  the  master  $800,  the  first  mate,  who 
had  taken  charge  of  the  vessel,  $1,000,  the  second 
mate  $25,  and  sixteen  sailors  $10  each ;  The  Roe, 
Swa.  184,  where  £150  was  awarded,  of  which  the 
owners   received   £60,  the   master  £25,  and  the  re- 

1    The  C.  W.  King,  2  Hughes,  99.     See  also  Brooks  ».  The  William 
Penn,  2  Hughes,  U4. 

10 


146  ADMIRALTY  LAW. 

mainder  was  divided  among  twenty-seven  seamen, 
in  proportion  to  their  wages ;  The  Janet  Mitchell, 
Bridges,  111;  and  The  Golendrina,  1  Adm.  &  Ecc. 
334,  where  £1,800  was  awarded,  of  which  the  own- 
ers received  £1,000,  the  second  mate  £300,  the 
master  £200,  and  the  crew  £300,  according  to  their 
rating. 

In  the  case  of  The  Brig  Anna,  6  Ben.  166,  Judge 
Benedict  awarded  $6,000  as  a  salvage,  and  deducted 
$600  for  amount  paid  to  a  tug-boat  subsequently  era- 
ployed  to  bring  the  vessel  to  port;  the  master  was 
sailing  on  agreement  with  his  owners  to  make  that 
voyage  on  one-half  the  shares.  The  court  gave  to  the 
owners  $3,600,  of  which  one-half  belonged  to  the  cap- 
tain under  his  agreement,  and  awarded  the  captain,  in 
addition,  $500 ;  it  gave  to  the  mate  $800,  and  to  the 
seamen,  all  told,  $500. 

In  The  Pride  of  Canada,  Browning  &  Lush.  208,  sal- 
vage had  been  awarded  in  a  limited  sum  of  £1,000. 

The  seamen  filed  their  action  for  a  proportionment 
of  the  salvage.  The  Merchant  Shipping  Act  was 
pleaded  in  bar  of  their  action,  and  held  not  tenable. 
The  court  decreed  for  the  seamen  ;  and  of  the  £1,000 
awarded  gave  to  the  owners  £750,  and  the  remaining 
£250  to  the  masters  and  crews,  each  of  the  two  mas- 
ters to  take  £30,  and  the  seamen  to  take  the  balance, 
according  to  their  rating.  ' 

The  case  of  The  Steamboat  Edward  Howard,  1  Newb. 
522,  was  an  action  by  a  crew  for  the  distribution  of 
salvage.  The  respondent  offered  to  deposit  a  fair 
proportion  of  the  whole  compensation  allowed.  The 
amount  of  the  salvage  was  $10,000.  The  libellants 
were  firemen,  and  the  court  awarded  to  three  of  them 

),  and  to  four  $30.     The  court  said  :  "In  cases  like 


SALVAGE.  147 

the  present,  a  very  large  proportion  of  the  salvage  com- 
pensation must  necessarily  be  awarded  to  the  salving 
vessel,  inasmuch  as  it  was  mainly  through  the  admi- 
rable equipment  and  apparatus  of  such  boats  as  the 
*  Robb  *  and  the  *  Iroquois  '  that  the  exertions  of  the 
salvors  were  rendered  effectual."  In  that  case,  as  the 
amount  awarded  by  the  court  had  been  previously  ten- 
dered, the  court  decreed  costs  against  the  libellants. 

In  the  case  of  Studley  v.  Baker,  decided  by  Judge 
Lowell,  in  Massachusetts,  in  1873,  2  Low.  207,  the 
facts  are  these  :  — 

A  schooner  fell  in  with  a  frigate  ashore,  and  assisted 
in  carrying  out  an  anchor,  and  in  lightering  her,  being 
employed  in  that  service  for  two  days  ;  the  vessel  was 
saved,  and  the  government  paid  the  owners  of  the 
schooner,  one  of  whom  was  the  master,  the  sum  of 
$3,500.  A  receipt  was  given  by  the  owners  in  the 
names  of  themselves  and  for  the  master  and  crew,  and 
they  testified  that  they  did  not  consider  the  libellant 
in  the  settlement,  he  being  mate  of  the  vessel.  The 
learned  judge,  after  taking  into  consideration  the 
question  of  his  jurisdiction  to  entertain  the  case  of 
the  mate  against  the  owners,  and  deciding  the  same 
affirmatively,  passes  to  the  question  as  to  the  rights  of 
the  crew  to  participate  in  the  salvage  money.  It  was 
held  that  the  amount  paid  was  for  the  salvage  due  to 
the  owners  and  crew,  and  he  says :  — 

Nor  is  it  any  less  certain  that  every  man  on  board  a  sailing- 
vessel,  who  is  ready  to  do  what  he  can,  is  to  share  in  the 
remuneration.  The  whole  matter  depends  on  a  large  and 
liberal  policy,  which  looks  almost  as  much  to  the  general 
interests  of  commerce  as  to  individual  deserts.  Those  own- 
ers of  ships  whose  crews  are  engaged  in  salvage  always  re- 
ceive something,  whether  they  can  prove  an  actual  damage 


148  ADMIRALTY  LAW. 

to  their  voyage  or  not.  The  only  dijBSculty  is  in  the  distri- 
bution. Considering  it  is  true,  as  set  up  by  the  owners,  that 
the  use  of  their  vessel  was  chiefly  as  a  lighter  worked  by  the 
men  of  the  "  Guerri^re,"  and  that  no  great  labor  or  hard- 
ship was  imposed  on  the  libellant,  and  that  the  owners  have 
been  at  all  the  trouble  of  obtaining  the  money  from  the 
United  States,  I  think  it  would  be  but  fair  to  give  a  some- 
what larger  share  than  usual  to  the  owners.  Taking  them 
to  have  received  by  this  time,  including  interest,  $1,600,  I 
divide  it  into  eighths,  of  which  the  libellants  and  other  men 
would  be  entitled  to  one,  or  $200  each. 

There  were  but  three  persons  on  the  schooner,  — 
the  master,  the  mate,  and  the  cook ;  so  therefore  the 
amount  awarded  by  the  court  was  in  the  proportion 
of  one-fourth  to  the  crew,  and  three-fourths  to  the 
master  and  owner. 

In  the  case  of  The  Brig  C.  W.  Ring,  2  Hughes,  99, 
a  brig  loaded  with  six  hundred  bales  of  cotton,  which 
had  lost  her  anchors  and  masts  in  a  storm  at  sea,  and 
was  sailing  in  distress  near  a  lea  shore,  with  a  jury 
mast  under  a  foretop-staysail,  hailed  a  large  steamer 
for  a  tow,  and  was  taken  into  port  in  seven  hours,  the 
storm  having  abated,  and  the  weather  growing  calmer 
during  the  tow.  Held,  that  out  of  the  salvage  money 
decreed,  the  owners  of  the  steamer  should  receive 
three-fifths,  and  the  master,  officers,  and  crew  two- 
fifths. 

In  the  reasons  for  judgment,  the  court  comments 
upon  the  change  of  the  ancient  doctrine,  and  the  ne- 
cessity of  awarding  the  owners  a  larger  share  than  to 
the  officers  and  crew. 

In  the  case  of  The  Scindia,  reported  under  the  head 
of  The  True  Blue,  L.  R.  1  P.  C.  259  (foot  of  page), 
the  Privy  Council,  after  awarding  to  the  "  Araminta  " 
£1,500,  distributed  it  in  this  manner:  *'To  give  £1,000 


SALVAGE.  149 

to  the  owners,  the  salvage  having  been,  in  reality, 
chiefly  performed  by  the  vessel ;  £200  to  the  master, 
for  the  responsibility  incurred ;  and  £300  amongst  the 
crew." 

Proportion  of  Salving  Vessel.  —  In  apportioning  sal- 
vage reward  between  the  ship-owner  and  the  seamen, 
the  court,  where  the  salving  vessel  is  a  steamer,  takes 
into  consideration  the  fact  that  the  chief  risk  in  the 
undertaking,  and  all  the  expense,  falls  upon  the  owners ; 
and  it  has,  since  the  introduction  of  steam  power, 
awarded  to  this  class  of  owners  a  much  higher  propor- 
tion than  owners  formerly  received.^ 

The  court  will  also  take  into  consideration  the  ob- 
vious fact,  that  in  a  great  majority  of  such  cases  the 
service  is  rendered  by  the  steam-vessel  herself,  and 
does  not  arise  from  any  extraordinary  exertions  on 
the  part  of  the  master  and  crew.^ 

In  the  last-cited  case  of  The  Vanguard  it  is  laid 
down  that  if  the  salving  vessel  be  a  passenger-ship, 
that  circumstance  will  also  be  taken  into  consideration 
in  the  apportionment  of  the  salvage  between  the  own- 
ers and  crew.  This  is  based  upon  grounds  of  public 
policy,  as  the  owners  of  steamers,  especially  when  car- 
rying passengers  and  mails,  might,  unless  liberally  re- 
warded, discourage  the  m.osters  of  their  vessels  from 
engaging  in  any  salvage  where  human  life  is  not  in 
peril.* 

And  where  the  steamer  sustains  any  damage  whilst 

1  The  Martin  Luther,  Swa.  287;  «  The  Martin  Lnther,  Swa.  287- 
The  Enchantress,  Lush.  93.  290;  The  Charles,  Newb.  329;  The 

»  The  Beulah,  2  Notes  of  Cases,    Henry  Ewbank,  1  Sumn.  400;  The 
61-63.     See  also  The   Perla,   Swa.    Nathaniel  Hooper,  1  Sumn.  541. 
230-232;  The  Mary  Jane,  11  L.  T. 
N.  8.   85.     And   The  Vanguard,  5 
Irish  Jur.  n.  s.  364. 


150  ADMIRALTY  LAW. 

rendering  the  service,  the  owner  is  entitled,  before  the 
amount  awarded  is  apportioned  between  himself  and 
the  crew,  to  deduct  the  expense  of  the  repairs,  and  a 
reasonable  sum  for  the  loss  of  the  ship's  services  while 
she  is  repairing.^ 

In  the  case  of  the  New  Harbor  Protection  Company 
V.  The  Tornado,  in  the  United  States  District  Court  for 
the  District  of  Louisiana  (not  reported),  which  I  have 
heretofore  cited  on  another  point,  Billings,  Judge, 
said :  — 

But  this  does  not  do  away  with  the  force  of  the  consider- 
ations which  spring  from  the  circumstances  of  the  case,  but 
leaves  the  court,  while  setting  aside  the  agreement  as  an 
agreement,  to  fix  the  relative  claims  of  vessel  and  seamen  to 
compensation,  and  to  determine  the  proportions  of  each,  ac- 
cording to  the  equities  of  the  parties,  as  they  existed  without 
any  contract. 

Such  a  case  has  not  been  before  this  court.  Here  is  a  ves- 
sel built  and  equipped  on  purpose  to  do  salvage  service ;  the 
seamen  know  very  well  that  they  are  to  do  nothing  else. 
They  are  not,  therefore,  as  in  case  of  ordinary  vessels,  to  re- 
ceive wages  as  seamen,  salvage  services  being  incidental ;  but 
they  are,  from  the  beginning  to  the  end  of  their  employment, 
to  engage  in  salvage  services  and  nothing  else ;  and  knowing 
this,  they  receive  from  the  owners  of  the  "Protector"  for 
months,  fixed  wages,  which  are  not  to  be  reduced  in  case  no 
salvage  service  is  performed.  It  seems  to  me,  from  a  consid- 
eration of  these  facts,  that  the  expenses  which  the  "Protector" 
incurred  in  performing  these  salvage  services,  which  is,  accord- 
ing to  the  evidence,  about  12,400,  should  be  first  deducted 
from  the  gross  amount  awarded  to  the  "  Protector,"  and 
treated  as  belonging  to  the  vessel  before  there  is  any  divi- 
sion, and  that  of  the  residue  the  vessel  should  receive  three- 
quarters  and  the  crew  one-quarter,  according  to  their  rank 
on  the  pay-roll. 

1  The  Spirit  of  the  Age,  Swa.  286. 


SALVAGE.  151 

The  fact  that  both  vessels  belonged  to  the  same 
owner  furnishes  no  ground  of  exemption  from  a  claim 
for  a  salvage  compensation  by  the  master  and  crew  of 
the  salving  vessel.  Proof  of  a  contract,  usage,  or  under- 
standing that  no  claim  shall  be  made,  will  defeat  it.^ 

The  owners  of  fishing-vessels  also  generally  receive 
a  larger  share  of  salvage  than  the  owners  of  other  ves- 
sels, the  court  taking  into  consideration  the  interrup- 
tion to  their  occupation  occasioned  by  the  salvage 
service,  and  the  fact  that  the  wages  paid  to  their  mari- 
ners are  greater  than  those  of  the  crews  of  other 
vessels.^ 

If  the  salving  vessel  was  actually  engaged  in  fishing 
at  the  time  when  she  rendered  the  assistance,  the  court 
will,  in  apportioning  the  salvage,  take  into  considera- 
tion the  interruption  of  the  employment.^ 

The  court  will  not,  however,  lose  sight  of  its  ancient 
principle  of  adequately  and  liberally  rewarding  the  per- 
soucal  service  of  the  men  engaged;  and,  as  a  general  rule, 
the  owners  will  not  be  permitted  to  take  more  than  a 
moiety  of  the  net  sum  received  after  deducting  ex- 
penses.* 

The  fact  that  a  considerable  sum  has  been  awarded 
to  the  owners  of  the  salving  vessel  in  a  suit  brought  by 

*  The  Colima,  5  Sawyer,  181,  See,  as  to  the  proportions  awarded 
District  of  California.  owners,  The  Himalaya,   Swa.  515; 

a  The  Louisa,  2  W.  Rob.  22-26.  The  Spirit  of  the  Age.  Swa.  286; 

«  The  Louisa,  6  Notes  of  Cases,  The   Earl  Grey,  3  Hagg.  363;   The 

Supp.  531.     See  also  The  Albion,  Columbia,  3  Hagg.  428;  The  Albion, 

3  Hagg.  254,    and    The   Deveron,  3  Hagg.  254 ;  The  W^aterloo.  2  Dods. 

10   Monthly   Law  Mag.  (Notes  of  433;   The  Morning  Star,  14  L.  T. 

Cases)  219.  n.  s.  420;  s.  c.  6  Blatchf.  154;  The 

*  The  Enchantress,  Lu.<*h.  93-96;  Vine,  2  Hagg.  1;  The  Charlotte,  1 
The  Princess  Helena,  Lush.  11)0.  W.  Rob.  68;  The  Jane,  2  Hagg.  1; 
But  see  The  Saint  Nicholaus,l  Lush.  The  Salacia,  2  Hagg.  262;  The 
29(where,  out  of  an  award  of  £2,800,  Nicolina,  2  W,  Rob.  175;  The 
£1,500  was  apportioned  to  the  own-  Benlah,  1  W.  Rob.  477;  The  Hope, 
era  of  the  tug  effecting  the  salvage).  3  Hagg.  423. 


152  ADMIRALTY  LAW. 

them,  does  not  affect  the  amount  to  which  the  master 
and  crew,  who  have  instituted  a  separate  suit,  are 
entitled.^ 

The  tendency  of  the  courts  of  the  United  States 
seems  to  be  to  look  upon  the  claim  of  the  owner  of 
the  salving  vessel  with  even  a  higher  degree  of  favor 
than  they  have  met  with  in  the  English  court  of  ad- 
miralty.^ 

In  some  cases  the  owners  have  been  awarded  one- 
half,^  two-thirds,*  and  even  three-fourths.^ 

In  one  case,  however,  where  the  peril  encountered 
was  considerable,  the  amount  awarded  small,  and  the 
salvors  numerous,  the  court  divided  the  salvage  into 
thirteen  equal  parts,  giving  each  salvor,  including  the 
owners,  one.'' 

The  courts  of  the  United  States  also  follow  the  prac- 
tice of  the  English  admiralty,  in  giving  the  owners  of 
steamers  which  render  salvage  service  a  larger  propor- 
tion than  is  generally  awarded  to  other  vessels. 

In  the  case  of  Mason  v.  Ship  Blaireau,  2  Cranch,  240, 
Marshall,  C.  J.,  at  page  270,  says  :  — 

The  claim  of  the  master  to  the  salvage  allowed  his  ap- 
prentices is  one  which  the  court  feels  no  disposition  to  sup- 
port, unless  the  law  of  the  case  be  clearly  with  him.  The 
authorities  cited  by  his  counsel  do  not  come  up  to  this  case. 
The  right  of  the  master  to  the  earnings  of  his  apprentice,  in 
the  way  of  his  business,  or  of  any  other  business  which  is 
substituted  for  it,  is  different  from  a  right  to  his  extraordi- 
nary earnings,  which  do  not  interfere  with  the  profits  the 
master  may  legitimately  derive  from  his   service.      Of  this 

1  The  Aletheia,  13  W.  Rob.  279.         «  The  Rising  Sun,  Ware,  385. 

2  The  Delphos,  1  Newb.  412;  <  The  Waterloo,  Blatchf.  &  How. 
The  Blaireau,  2  Cranch,  240;   The    114. 

Henry  Ewbank,  1  Sumn.  400;  The         ^  La  Belle  Creole,   1  Pet.  Adm. 

Boston,  1  Sumn.  330;  The  Cora,  2    31,  at  p.  45. 

Wash.  80.  «  The  Stewart,  Crabbe,  218. 


SALVAGE.  153 

latter  description  is  salvage.  It  is  an  extra  benefit,  the  re- 
ception of  which  does  not  deduct  from  the  profits  the  master 
is  entitled  to  from  his  service.  But  the  case  cited  from 
Robinson,  where  salvage  was  actually  decreed  to  an  appren- 
tice, is  in  point.  The  counsel  does  not  appear  to  the  court  to 
construe  that  case  correctly,  when  he  says  that  it  does  not 
determine  the  right  as  between  the  master  and  the  appren- 
tice. The  fair  understanding  of  the  case  is,  that  the  money 
was  decreed  to  the  apprentice,  and  was  to  be  paid  for  his 
benefit. 

Considering  the  case  strictly  on  principle,  that  portion  of 
the  salvage  allowed  ought  to  be  paid  to  the  master  which 
would  compensate  him  for  having  risked  the  future  service  of 
his  apprentice ;  but  as  this  would  not  amount  to  a  very  con- 
siderable sum,  and  as  a  liberal  salvage  has  already  been  de- 
creed to  the  master,  this  further  allowance  will  be  made  in 
this  case. 

For  the  English  decisions  as  to  apprentices,  see  The 
Columbus,  2  W.  Rob.  186-188  and  The  Two  Friends, 
2  W.  Rob.  349-353. 

In  this  last  case,  that  of  The  Two  Friends,  Dr.  Lush- 
ington  held  the  allotment  of  salvage  to  be  a  personal 
reward  for  labor  and  skill ;  and  decided  that,  whether 
the  salvors  were  apprentices  or  not,  no  one  had  a  right 
to  interfere  with  the  property  which  belonged  to  them. 

The  United  States  courts  have  held  that  slaves  earn- 
ing salvage  are  entitled  to  have  it  decreed  to  them  for 
their  own  use.^ 

In  one  case,  however,  the  whole  sum  was  paid  to  his 
owner,  on  his  agreeing  to  manumit  the  slave,  and  to 
pay  him  one-fifth  part  of  the  salvage  money.* 

In  the  case  of  The  Ship  Charles,  Newb.  Adm.  329,  it 
was  held,  that  where  some  of  the  salvors  decline  or 

^  Small  et  al.  v.  Goods  saved  from         '  The  Blaireau,  2  Cranch,  240. 
the  Messenger,  2  Pet.  Adm.  284. 


154  ADMIRALTY  LAW. 

refuse  to  claim  salvage,  their  shares  will  not  revert  to 
the  benefit  of  their  co-salvors,  but  to  that  of  the  owners 
of  the  property. 

Agreement  for  Apportionment. — Salvors  may,  and  fre- 
quently do,  agree  between  themselves  as  to  the  division 
of  the  sum  awarded  to  them.  If,  however,  the  agree- 
ment should  be  inequitable  as  regards  any  of  the  par- 
ties, the  court  of  admiralty  will  refuse  to  be  bound  by 
it,  and  will  decree  an  equitable  apportionment  of  the 
salvage.^ 

In  the  case  of  the  British  Steamer  Plainmeller  v. 
The  Steamer  Adirondack,  tried  in  the  United  States 
District  Court  for  New  York,  and  reported  in  the  New 
York  Maritime  Register,  May  12,  1880,  p.  4,  a  libel 
suit  was  brought  by  the  captain  of  the  "Plainmeller"  to 
secure  the  sum  of  £4,000  upon  an  agreement  by  writ- 
ing made  by  the  master  of  the  "Adirondack"  to  pay  that 
sum  for  a  salvage  service.  Judge  Choate  said,  that  he 
thought  the  captain  of  the  "  Plainmeller  "  took  advan- 
tage of  the  situation  of  Captain  Roberts,  who  was  inex- 
perienced, this  being  his  first  voyage  as  master,  to  exact 
from  his  circumstances  of  present  distress  an  exorbitant 
and  grossly  excessive  amount.  In  the  course  of  his 
decision  Judge  Choate  says :  "  The  apprehension  of 
the  learned  counsel  for  the  libellant,  that  the  setting 
aside  of  such  contracts  will  tend  to  discourage  the  ren- 
dering of  salvage  service,  is  unfounded,  as  long  as  the 
courts  award,  as  they  endeavor  to  do  in  every  case, 
such  a  sum  as  will  be  not  only  a  quantum  meruit  for  the 
time  and  labor  employed  in  the  service,  but  a  liberal 
reward  for  the  assistance  rendered  and  the  perils  volun- 

1  The  Enchantress,  Lush.  93-95;  also  The  Silver  Bullion,  2  Spinks, 
The  Louisa,  2  W.  Rob.  22;  The  70;  The  Mary  Anne,  11  L.  T.  n.  s. 
Beulah,  2  Notes  of  Cases,  61.    See    85. 


SALVAGE.  155 

tarily  incurred."  A  decree  is  ordered  to  be  entered 
for  the  libelants  for  $7,582. 

Abandonment  of  Salvage,  —  By  section  4535  of  the 
United  States  Revised  Statutes  it  is  provided  that 
every  stipulation  by  which  any  seaman  consents  to 
abandon  any  right  which  he  may  have  or  obtain  in  the 
nature  of  salvage  shall  be  wholly  inoperative. 

As  I  am  aware  of  but  a  single  decision  on  the  above 
section  (and  that  decision  is  not  reported),  1  will  fully 
state  the  case,  although  I  am  reluctantly  compelled 
therein  to  speak  of  myself  and  of  my  defeat. 

The  title  of  the  case  is  "  United  States  District 
Court,  District  of  Louisiana,  No.  11,207;  New  Harbor 
Protection  Company  v.  Ship  Tornado,  Cargo  and 
Freight,  on  the  intervention  of  certain  of  the  officers 
and  crew  of  the  *  Protector.'  " 

On  the  27th  of  February,  1878,  I  caused  to  be  filed 
the  libel  of  the  New  Harbor  Protection  Company. 

Before  the  adjournment  of  court,  in  June,  I  had  tes- 
timony taken  of  various  witnesses  in  behalf  of  said  cor- 
poration, and  among  others  of  Davidson,  the  mate  of 
the  "  Protector,"  who  was  one  of  the  intervenors. 

I  also  caused  to  be  taken  the  testimony  of  James 
Grant,  the  engineer  of  the  "  Protector,"  who  was  an- 
other party  to  said  intervention. 

On  the  8th  of  January,  1879,  Davidson  and  Grant,  with 
some  others  of  the  crew  of  the  "  Protector,"  filed  their 
interventions  for  a  portion  of  the  salvage  compensation. 

In  my  libel  for  the  owners  of  that  boat,  I  claimed  for 
them  all  the  salvage  earned  by  the  "  Protector,"  and 
asked  nothing  for  her  officers  and  crew,  as  I  was  of 
opinion  that,  under  their  contract,  their  services  in  sal- 
vage cases  inured  to  the  benefit  of  the  New  Harbor 
Protection  Company. 


156  ADMIRALTY  LAW. 

This  opinion  was  entertained  by  me  when,  long  ago, 
I  framed  that  agreement,  and  in  February,  1878,  when 
I  filed  the  libel  for  the  said  corporation.  It  was  founded 
on  my  belief  that  section  4535  of  the  United  States 
Revised  Statutes  (which  provides  that  agreements  by 
seamen  to  abandon  claims  for  salvage  shall  be  inopera- 
tive) did  not  apply  to  the  officers  and  crew  of  the  "  Pro- 
tector." 

To  the  intervention  of  Davidson  and  Grant,  officers, 
and  of  certain  of  the  crew  of  the  "  Protector,"  I  opposed 
their  agreement,  dated  1st  February,  1878,  and  their 
receipt  in  full,  dated  28th  February,  1878. 

These  dales  cover  the  period  during  which  the  salvage 
services  were  rendered  to  the  "  Tornado  "  by  the  cor- 
poration's iron  fire-boat "  Protector." 

The  agreement  was  signed  by  said  Davidson  and 
Grant,  and  the  other  intervenors  of  the  "  Protector's  " 
crew,  and  was  witnessed  by  Davidson.  That  was  prior 
to  the  salvage  service.  The  following  is  a  copy  of  the 
agreement,  the  original  of  which  is  to  be  found  in  the 
record  (omitting  in  this  copy,  for  the  sake  of  brevity, 
the  signatures,  the  heading,  &c.)  :  — 

We,  the  undersigned,  hereby  agree  to  ship  on  board  the 
steam  iron  fire-boat  "  Protector,"  in  the  employment  or  capac- 
ity of  the  station  or  rank  of  employment  set  opposite  our  re- 
spective names,  under  the  following  terms  and  conditions, 
and  during  the  pleasure  of  the  corporation  known  as  the  New 
Harbor  Protection  Company,  viz. :  — 

Whereas,  the  steam  iron  fire-boat  "  Protector,"  being  owned 
and  supported  by  said  corporation,  is  not  engaged  in  the  general 
towing  or  coasting  business,  but  has  been  built  and  fitted  up  at 
great  expense  for  the  express  purpose  of  saving  property  in 
jeopardy  from  fire  and  water  in  and  about  the  harbor  of  New 
Orleans,  by  means  of  immense  steam-pumps,  large  Babcock 
engines,  steam  elevator,  and  other  very  costly  apparatus,  and 


SALVAGE.  157 

also  to  relieve  vessels  and  steamboats  in  distress  in  the  Mis- 
sissippi River,  on  any  or  all  of  which  salvage  may  hereafter 
be  due  and  claimed  by  said  corporation  ;  and  whereas,  the 
monthly  running  expenses  of  said  steam  iron  lire-boat  "  Pro- 
tector "  are  and  must  necessarily  be  very  large :  Now,  we, 
the  undersigned  officers  and  crew,  herein  and  hereby  express 
our  free  and  earnest  desire  and  determination  not  to  assume 
any  portion  of  said  costs  or  expenses,  nor  to  ri^sk  or  hazard 
any  portion  of  our  pay  or  emolument,  upon  the  contingency 
of  such  earnings  of  salvage  ;  and  we  hereby  agree  and  consent 
to  ship  as  part  of  the  crew  of  said  steam  iron  fire-boat 
"  Protector,"  with  the  full  knowledge,  understanding,  and 
agreement  that  we  are  to  be  entirely  compensated  for  any 
and  all  services  we  may  render  whilst  so  employed,  by  the 
payment  monthly  of  the  sums  set  opposite  our  names  and  the 
daily  furnishing  to  us  of  provisions  as  usual  on  shipboard, 
and  these^  whether  circumstances  occur  to  call  forth  our  services 
or  not. 

And  for  and  in  consideration  of  these  wages  and  provisions 
we  do  hereby,  each  for  himself,  disclaim,  renounce,  and  aban- 
don to  the  said  corporation,  ownere  of  the  "  Protector,"  all  and 
any  sum  or  sums  or  apportionment  that  may  or  might  other- 
wise be  due  us,  as  officers  or  crew  of  said  steam  iron  fire- 
boat  "  Protector,"  from  or  by  reason  of  any  and  all  salvage 
cases  in  which  the  New  Harbor  Protection  Company,  or  the 
steam  iron  fire-boat  "  Protector  "  and  owners,  may  be  salvors. 
We  acknowledge  that  the  above  has  been  read  by  or  to  us, 
before  signing,  and  in  presence  of  the  following  witnesses. 

The  following  is  a  copy  of  their  receipt  in  full  (with 
like  omissions  of  their  signatures,  &c.),  which  receipt  in 
original  I  also  offered  in  evidence.  The  original  was 
signed  by  all  of  these  intervenors  after  the  salvage  ser- 
vices were  rendered. 

We,  the  undersigned,  officers  and  crew  of  steam  iron  fire- 
boat  "  Protector,"  hereby  acknowledge  to  have  received  from 
the  New  Harbor  Protection  Company  the  sums  set  opposite 


158  ADMIRALTY  LAW. 

our  names,  in  full  for  our  wages  and  all  services  of  every  kind 
rendered  by  us  on  board  of  said  "  Protector,"  from  and  to 
the  dates  mentioned  below.     New  Orleans,  18     . 

To  this  agreement  and  receipt  the  proctor  for 
Davidson,  Grant,  and  the  other  interveners  opposed 
the  aforesaid  section  4536  of  the  United  States  Re- 
vised Statutes. 

I  replied  that  said  section  is  not  applicable  to  these 
intervenors,  and  for  the  following  reasons  :^ — 

The  title  which  contains  section  4535  of  the  United 
States  Revised  Statutes  is,  "Title  LIII,  Merchant 
Seamen."     Now,  seamen  are  defined  to  be :  — 

"  The  individuals  engaged  in  navigating  ships,  barges, 
&c.,  on  the  high  seas."  —  McCuUoch's  Commercial  Dic- 
tionary. 

"  Those  employed  for  this  purpose  upon  rivers, 
lakes,  or  canals,  are  denominated  tmtermen"     Ibid. 

"  Seaman  —  one  who  practises  navigation  at  sea.^^  — 
Worcester. 

But  the  title  is,  not  only  of  seamen,  but  merchant 
seamen. 

A  merchant  is  "  an  importer  or  exporter  of  goods." 
—  Webster. 

Merchantman  —  a  ship  employed  in  trade.     Ibid. 

Seaman  —  one  who  follows  the  sea  as  a  profession  or 
for  a  livelihood.  —  Zell's  Popular  Encyclopaedia  and 
Universal  Dictionary  of  English  Language,  Science, 
Literature,  and  Art. 

A  perusal  of  all  the  sections  of  Title  LIII  shows 
that  they  relate  to  those  who  "  go  down  to  the  sea  in 
ships." 

The  testimony  which  I  offered  proves  that  the 
"  Protector  "  never  goes  to  sea,  nor  out  of  this  harbor, 
and  that  the  agreement  existed  two  years  prior  to  the 


SALVAGE.  159 

fire  on  the  "Tornado,"  during  all  which  time  Grant 
and  Davidson  were  employed  on  the  "Protector;"  and 
the  latter  made  out  the  shipping  articles. 

In  the  case  of  The  Neafie,  Judge  Woods  distin- 
guished the  tugs  towing  between  the  city  of  New 
Orleans  and  the  mouth  of  the  river  Mississippi  from 
those  plying  in  the  fiarbor  of  New  Orleans. 

The  reason  for  enacting  this  section  4535,  and  the 
whole  title  on  Merchant  Seamen,  the  evil  which  existed 
and  the  remedy  for  that  evil,  did  not  seem  to  my  hum- 
ble judgment  to  apply  to  these  watermen.  "  Cesmnte 
ratione  legis  cessat  ipsa  lex.** 

Reason  is  the  soul  of  the  law,  and  when  the  reason 
of  any  particular  law  ceases,  so  does  the  law  itself. 

If  the  motive  of  the  law  does  not  apply,  the  law  does 
not. 

The  ratio  legis,  in  reference  to  this  section  4535,  I 
considered  to  be,  that  seamen  are  unprotected  and 
ignorant,  and  need  counsel ;  rash  and  thoughtless,  and 
require  indulgence ;  imprudent,  credulous,  and  easily 
overreached. 

They  are  "  the  wards  of  the  admiralty."  They  may 
have  gallantly  rescued  persons  and  property  in  the 
middle  of  the  ocean,  amidst  roaring  seas  and  angry 
billows,  with  great  daring  and  enterprise.  The  law 
did  not  intend  that  such  bold,  brave  seamen  should  be 
deprived  of  the  reward  of  valor  and  intrepidity,  or  that 
the  incentives  to  heroic  conduct  should  be  removed 
by  some  weak,  overreaching  agreement  (for  an  inade- 
quate consideration),  to  renounce  their  claims  to  sal- 
vage rewards,  perhaps  in  a  foreign  port,  far  distant 
from  any  friends  or  advisers. 

But  these  watermen  on  the  iron  boat  "  Protector  " 
never  go  out  of  tliis  harbor,  and  are  at  home,  where 


160  AD^nRALTY  LAW. 

there  is  no  lack  of  able,  learned,  experienced,  and 
diligent  proctors  to  advise  all  who  desire  to  consult 
them. 

In  Newberry's  Reports,  p.  539,  it  was  held  that  the 
act  of  July  20,  1790  (1  U.  S.  Stat,  at  Large,  p.  18), 
for  the  government  and  regulation  of  seamen  in  the 
merchant  service,  did  xot  apply  to  an  engineer  of  the 
propeller  employed  as  a  tug-boat  from  the  mouth  of 
the  river  Detroit  to  Port  Huron,  the  propeller  not  hdng 
engaged  m  foreign  commerce. 

Sail-makers  may  sue  in  the  admiralty  (Ben.  §  266), 
but  they  are  not  "  the  wards  of  the  admiralty." 

But,  for  the  sake  of  brevity,  I  must  omit  all  my 
other  and  further  arguments,  and  proceed  to  the  de- 
cision, for  the  right  appreciation  of  which  decree  so 
much  as  I  have  above  stated  seemed  to  be  necessary. 

In  deciding  the  question,  Billings,  J.,  said :  — 

The  whole  question  depends  upon  the  further  question  as 
to  whether  the  "  Protector  "  was  a  merchant-vessel.  If  she 
is  a  merchant-vessel,  the  seamen  on  her  come  within  the 
purview  of  this  section.  It  was  clearly  shown  that  her  busi- 
ness was  substantially  to  aid  vessels  in  distress  in  the  port 
of  New  Orleans  upon  the  Mississippi  River.  But  I  think 
she  is,  nevertheless,  a  merchant-vessel.  There  are  but  two 
classes  of  vessels,  known  to  the  law.  They  are  those  which 
are  in  the  public  naval  service  and  thos;e  which  are  in  the 
merchant  service.  Tliere  can  be  no  third  class.  The  intent 
and  meaning  of  the  registration  and  license  laws  for  vessels 
forbid  it.  See  Benedict's  Admiralty,  §  235.  Since  she 
is  in  the  merchant  service,  the  section  under  consideration 
applies  to  her,  and  the  agreement  executed  by  the  crew  of 
the  "  Protector  "  is,  by  the  act  above  referred  to,  rendered 
inoperative. 

I  have  on  a  previous  page  quoted  that  portion  of 
the  decision  wherein  the  judge,  from  a  consideration 


SALVAGE.  161 

of  the  facts,  awarded  only  one-fourth  of  the  salvage 
reward  to  the  crew,  according  to  their  rank  on  the 
pay-roll,  and  three-fourths  to  the  owners  of  the  "  Pro- 
tector;" and  decreed  that  the  expenses  which  the 
"Protector"  incurred  in  performing  these  salvage  ser- 
vices (about  $2,400)  should  be  first  deducted  from  the 
gross  amount  awarded  to  the  "  Protector,"  and  treated 
as  belonging  to  the  vessel,  before  there  was  any  division. 

In  the  same  case  the  judge  awarded  to  the  inter- 
venors,  who  were  owners  of  other  vessels,  and  their 
crews,  one-half  to  the  owners,  and  one-half  to  their 
crews. 

The  awarding  of  one-half  to  the  intervening  crews 
in  the  above  case  by  Billings,  J.,  was  probably  induced 
by  the  fact  that  the  case  of  The  Tornado  was  decided 
by  him  in  the  November  term,  1879 ;  and  in  the  April 
term,  1878,  Bradley,  Justice,  had  awarded  one-half  to 
the  crews  in  the  case  of  Sonderburg  v.  The  Tow  Boat 
Company,  3  Woods,  146. 

In  this  last-cited  case  it  is  said  that  the  rule  adopted 
in  this  circuit  for  the  apportionment  of  salvage  is  to 
give  one  half  to  the  salving  vessel  and  the  other  half 
to  her  officers  and  crew,  in  proportion  to  their  rate  of 
wages. 

It  will  be  seen  by  reference  to  The  Suliote  (not 
reported,  but  decided  after  the  case  of  Sonderburg), 
heretofore  cited  by  me  as  No.  9082,  United  States 
Circuit  Court  for  the  District  of  Louisiana,  that  Brad- 
ley, Justice,  decreed  to  the  crews,  not  one-half,  but 
to  the  crew  of  the  "  Maude  Wilmot "  two  months' 
wages,  to  the  crew  of  the  "  Belle  Darlington "  three 
months'  wages,  and  to  the  crew  of  the  "Protector" 
four  months'  wages. 

The  rule  of  apportionment  as  laid  down  in  Sonder- 

11 


162  ADMIRALTY  LAW. 

burg  V.  The  Tow  Boat  Company  {ubi  supra),  of  de- 
creeing one-half  to  the  crew,  was  adopted  in  the  Circuit 
Court  for  the  District  of  Louisiana,  by  Pardee,  J.,  in  the 
case  of  Averill,  cited  on  p.  164. 

With  regard  to  the  English  law  as  to  the  abandon- 
ment of  salvage,  I  solicit  leave  to  refer  to  the  case  of 
The  Ganges,  L.  R  2  Adm.  370. 

It  cites  the  Merchant  Shipping  Act  1854  (17  & 
18  Vict.  ch.  104),  §  182,  which  enacts  that  "every 
stipulation  by  which  any  seaman  consents  to  abandon 
any  right  which  he  may  have  or  obtain  in  the  nature 
of  salvage  shall  be  wholly  inoperative." 

But  it  would  appear  that  the  Parliament  found  it 
necessary  to  adopt  a  declaratory  law.  For  in  this  case 
of  The  Ganges  [ubi  supra)  Sir  R.  Phillimore,  in  his 
decision,  cites  the  amended  act  1862  (25  &  26  Vict, 
ch.  63),  §  18.  This  later  act  declares  that  the  above 
section  182,  of  17  &  18  Vict.,  "  does  not  apply  to  the 
case  of  any  stipulation  made  by  the  seamen  belonging 
to  any  ship,  which,  according  to  the  terms  of  the 
agreement,  is  to  be  employed  on  salvage  service^  with 
respect  to  the  remuneration  to  be  paid  to  them  for 
salvage  services  to  be  rendered  by  such  ship  to  any 
other  ship." 

Thus,  it  is  obvious  that  in  Great  Britain  an  agree- 
ment, such  as  the  owners  of  the  "Protector"  made, 
with  her  officers  and  crew,  which  I  have  cited,  ante, 
would  be  operative  even  as  to  seamen. 

I  would  therefore  respectfully  suggest,  that,  if  thought 
desirable,  the  Congress  of  the  United  States  should  be 
asked  to  enact  a  declaratory  law  like  that  adopted  by 
the  British  Parliament. 

For  the  manner  in  which  the  acts  of  Parliament 
have  been  construed,  see  The  Ganges,  L.  R.  2  Adm. 


SALVAGE.  163 

370.  See  also  The  Enchantress,  Lush.  93 ;  The  Pensa- 
cola,  B.  &  L.  306 ;  The  Pride  of  Canada,  B.  &  L.  208- 
210;  The  Mary  Anne,  11  L.  T.  n.  s.  85. 

It  is  almost  unnecessary  to  observe  that  the  court  of 
admiralty  will  not  recognize  any  local  custom  which 
disentitles  a  seaman  to  a  share  of  salvage  which  he  has 
assisted  in  earning.^ 

If,  however,  the  local  or  customary  agreement  be  an 
equitable  one,  as  if,  for  instance,  it  provides  that  of  the 
crew  of  a  life-boat  company,  those  who  stay  shall  be 
rewarded  and  those  who  go,  the  court  will  favorably 
consider  it.'* 

If  the  master  should  retain  a  greater  proportion  of 
salvage  reward  received  by  him  than  the  owners  con- 
sider him  entitled  to,  they  cannot  set  it  off  against 
his  claim  for  wages,  but  must  institute  a  suit  for  ap- 
portionment, and  bring  into  court  the  amount  they 
received.* 

And  where  salvage  money  has  been  paid  into  court 
for  the  purpose  of  distribution,  the  court  will  not 
decree  payment  out  of  the  fund  of  advances  made  to 
the  salvors  by  their  agent;  and  has  refused  to  do  so 
even  where  the  persons  receiving  the  advances  were 
minors,  against  whom  the  lender  of  the  money  had  no 
remedy  at  law.* 

It  is  the  general  practice  of  courts  of  admiralty,  in 
cases  of  salvage,  to  decree  that  a  minor's  share  of  the 
reward  shall  be  his  own  property.^ 

In  case  any  of  the  salvors  should  lose  their  lives  in 
rendering  the  service,  or  should  die  before  the  appor- 

»  The  John,  Pritch.  Dig.  p.  830.         <  The  Ixjuisa,  2  W.  Rob.  22.    See 
«  The  Enchantress,  Lush.  93-97.     also  The  Louisa,  3  W.  Rob.  99. 
•  The  Princess  Helena,  Lush.  190.         »  Dunlap's  Adm.  Pr.  88. 


164  ADMIRALTY  LAW. 

tionment  should  take  place,  the  court  will  direct  their 
shares  to  be  paid  to  their  representatives.^ 

Although  co-salvors  almost  invariably  join  in  the 
same  suit,  their  interests  are  not  joint,  but  several ; 
and,  consequently,  except  under  very  exceptional  cir- 
cumstances, payment  of  the  salvage  to  one  does  not 
discharge  the  claims  of  the  rest,  unless  they  concurred 
in  or  ratified  the  transaction.^ 

Delay.  Stale  Demands.  —  Where,  pending  a  suit  for 
salvage  in  the  name  of  the  master  and  owners  of  the 
salving  vessel,  an  arbitration  is  had,  and  an  award 
made  under  which  a  certain  sum  is  received,  the 
crew  are  entitled  to  share  therein  in  the  proportion 
of  one  half  to  the  salving  vessel,  and  the  other  half 
to  her  officers  and  crew  in  proportion  to  their  rate  of 
wages ;  and  where  the  'salvage  money  was  withheld  by 
the  owners,  and  certain  of  the  salving  crew  remained 
in  the  employ  of  the  ship-owners  without  making  claim 
for  their  share  of  the  salvage  money,  for  fear  of  dis- 
charge and  loss  of  employment,  such  apprehension 
was  a  sufficient  reason  for  not  prosecuting  their  claim 
sooner ;  and  where,  under  such  circumstances,  the 
claim  is  not  prosecuted  for  a  period  of  over  nine  years, 
a  plea  of  staleness  of  demand  constitutes  no  de- 
fence.^ 

Of  Suits  hy  Salvors  v.  Co-salvors.  —  When  the  petty 
officers  and  crew  of  a  salving  vessel,  who  have  sued 
her  owners  for  their  share  of  the  salvage,  did  not 
know  the  amount  of  salvage  that  had  been  received 
by  the  owners  until  just  before  the  bringing  of  their 

1  The  Marquis  of  Huntly,  3  Hagg.         »  W.  W.  Averill  et  al.  v.  E.  A. 

246-249;  The  Hope,  3  Hagg.  423-  Torke  et  ah.,  by  Pardee,  J.,  United 

425.  States    Circuit     Court,     Louisiana 

a  The  Sarah  Jane,  2  W.Rob.  Ill;  District,   April   Term,  1881  (unre- 

The  Britain,  1  W.  Rob.  40.  ported). 


SALVAGE.  165 

suit,  delay  in  bringing  tlie  suit  could  not  be  set  up  as  a 
defence.^ 

A  libel  in  personam,  brought  by  salvors  to  recover 
their  share  of  salvage  against  another  salvor,  who,  two 
years  before,  had  received,  and  still  held,  the  money 
belonging  to  libellants,  could  not  be  defended  against 
on  the  ground  that  the  claim  was  stale.^ 

Section  VI.  —  CONTRIBUTION. 

The  ordinary  usage  of  the  court  of  admiralty  in 
apportioning  the  liability  for  salvage  between  the  ship 
and  cargo  is  to  take  the  whole  value  of  the  ship  and 
cargo,  and  assess  the  amount  of  remuneration  upon  the 
whole,  each  paying  its  due  proportion.^ 

If  the  owner  of  the  ship  should  pay  the  whole 
amount  claimed  for  salvage,  in  order  to  obtain  the  re- 
lease of  the  ship  and  cargo,  he  will  have  a  lien  upon 
the  cargo  for  the  amount  which  it  is  bound  to  contrib- 
ute towards  the  salvage.* 

Siker  or  Bullion.  —  As  regards  the  doctrine  that  an 
exception  to  the  rule,  that  the  cargo  and  ship  contrib- 
ute to  salvage  in  equal  proportions,  is  said  to  exist 
where  the  cargo  consists  of  silver  and  bullion,  in  the 
case  of  The  Longford,*^  the  court  held  that  "  with  re- 
gard to  specie  it  is  like  any  other  cargo." 

The  whole  article,  from  the  London  Law  Times  and 

1  Sonderburg  v.  The  Tow  Boat  *  Briggs  v.  The  M.  T.  S.  L.  &  I. 

Company,  3  Woods,  143.  Assoc. ,  ubi  supra. 

»  Ibid.  •  Adtn.,    Feb.    17,    1881,    Law 

•  The  Emma,  2  W.   Rob.  31.5-  Times  Reports,  n.  8.  254;  American 

819.     See  also  The  Mary  Pleasants,  Law  Review,  vol.  xv.  No.  6  (Bo»- 

Swa.  224 ;  The  Maria  Jane,  14  Jur.  ton),  June,  1881. 
857 ;  Briggs  v.  The  Merchant  Trad- 
ers' Ship,  Loan,  and  Insurance  As- 
sociation, 13  Q.  B.  167. 


166  ADMIRALTY  LAW. 

American  Law  Review,  is  so  interesting  and  lucid,  that 
I  here  insert  it  in  its  entirety  :  — 

No  maxim  perhaps  is  more  frequently  insisted  on  than  that 
which  forbids  a  judge  to  decide  more  than  is  necessary  for  the 
case  in  hand.  At  the  same  time  none  is  more  difficult  to  ad- 
here to,  and  the  judgments  even  of  our  best  judges  abound 
in  obiter  dicta.  A  curious  instance  of  this  arose  a  few  days 
ago  in  the  admiralty  division  in  the  case  of  the  "  Longford." 
This  vessel  had  the  misfortune  to  get  into  a  collision  in  the 
river  Mersey,  and,  being  obliged  to  accept  assistance,  was 
subsequently  sued  for  salvage  services  rendered.  At  the 
time  of  the  services  she  had  on  board  a  clerk  of  the  Bank  of 
Leland  with  £50,000  in  specie  in  his  possession,  and  its  own- 
ers contended  at  the  trial  that  as,  even  if  the  ship  had  sunk 
at  once  before  the  arrival  of  assistance,  the  gold  could  have 
been  easily  recovered  by  divers,  it  ought  not  to  contribute  to 
the  salvage  award  in  the  same  proportion  as  the  ship  and  the 
rest  of  the  cargo. 

The  earliest  reported  case  of  this  character  is  The 
Jonge  Bastiaan,  6  C.  Rob.  822,  which  was  decided  in  1804. 
In  that  case  there  was  first  an  unsuccessful  attempt  to  salve 
the  vessel  by  a  single  smack,  at  the  end  of  which  the  master 
left  the  vessel  in  the  smack,  taking  with  him  a  quantity  of 
bullion,  and  a  second  successful  attempt  by  six  smacks.  At 
the  trial  it  was  contended  that  the  bullion  should  not  con- 
tribute, but  Sir  W.  Scott  (Lord  Stowell)  overruled  the 
objection.  The  next  reported  case  in  which  the  principle  of 
making  separate  allotments  on  the  ship  and  on  the  cargo 
seems  to  have  been  discussed  is  The  Vesta,  2  Hagg.  193, 
which  came  before  Sir  C.  Robinson  in  1828,  and  there  that 
learned  judge  distinctly  says  :  "  The  principle  of  giving  specific 
proportions  of  the  property  saved  is  an  inconvenient  rule  in 
itself,"  and  "  I  do  not  approve  the  distinction  ;  "  and  he  gives 
as  his  grounds  "  that  the  difference  of  danger  to  which  the 
property  is  exposed  would  be  a  most  difficult  criterion  to  be 
applied  in  most  cases,"  and  that  "to  uphold  such  a  notion 
would  lead  to  preferences  in  saving  one  part  of  a  cargo  be- 


SALVAGE.  167 

fore  another."  It  is  true  that  in  this  case  no  part  of  the  cargo 
was  silver  or  bullion,  but  it  cannot  be  said  that  the  subject 
was  not  present  to  his  mind,  for  in  the  course  of  his  judgment 
he  incidentally  remarks  :  "  Suppose,  for  instance,  a  casket  of 
jewels  on  board  which  might  be  saved  with  great  facility  ; 
it  could  not  be  contended  that  the  salvors  would  only  be  en- 
titled to  a  small  gratuity  for  carrying  it  on  shore."  This  being 
the  state  of  the  law  on  the  subject,  the  case  of  The  Emma,  2 
W.  Rob.  319,  a  timber-ladeu  vessel,  came  before  Dr.  Lush- 
ington  for  decision  in  1844,  and  it  is  in  the  judgment  de- 
livered in  that  case  that  the  dictum  occurs  which  was  the  sole 
ground  of  the  contention  just  raised  by  the  owners  of  the 
specie  in  the  case  of  "The  Longford,"  and  overruled  by  Sir 
R.  Phillimore :  "  The  ordinary  usage,"  says  Dr.  Lushington, 
*'  is  to  take  the  whole  value  of  the  ship  and  cargo,  and  assess 
the  amount  of  the  remuneration  on  the  whole,  each  paying 
its  due  proportion.  I  am  not  aware,  excepting  in  the  instance 
of  silver  or  bullion,  that  any  distinction  has  ever  been  taken, 
or  that  parties  have  been  permitted  to  aver  that  the  services 
were  of  greater  importance  to  the  ship  than  to  the  cargo,  and 
therefore  that  the  ship  should  bear  the  lesser  burden,  or  vice 
versa.  Such  a  distinction,  if  acknowledged,  would  in  many 
cases  lead  to  intricate  litigation  and  to  questi<ms  of  great 
nicety,  which  it  would  be  exceedingly  difficult  to  adjust. 
With  respect  to  silver  and  bullion,  it  is  true  that  a  distinction 
is  wisely  and  properly  permitted,  and  this  upon  the  considera- 
tion that  it  is  more  easily  rescued  and  preserved  than  more 
bulky  articles  of  merchandise."  This  is  perhaps  one  of  the 
most  arbitrary  dicta  ever  promulgated.  No  foundation  for 
the  rule  is  to  be  found  of  prior  date,  and  Sir  R.  Phillimore 
disposed  of  it  in  very  few  words.  "  The  attention  of  the 
court,"  said  the  learned  judge,  "  has  been  drawn  to  other  cases, 
especially  to  the  case  of  The  Jonge  Bastiaan,  ubi  supra,  from 
which  it  is  clear  that  if  any  such  rule  as  that  referred  to  ex- 
isted it  would  have  been  mentioned.  With  regard  to  specie, 
it  is  like  any  other  cargo." 

This   decision   has   removed   a  difficulty   felt  by  all  the 
writers  of  text-books  (2  Paraons,  796 ;  2  Pritch.  Dig.  796) 


168  ADMIRALTY  LAW. 

who  have  noticed  the  point,  whose  only  course  has  been  to 
place  the  conflicting  decisions  side  by  side  and  leave  the  mat- 
ter in  doubt. 

It  has  further  brought  the  English  law  into  conformity 
with  the  American,  —  a  desirable  thing  from  an  international 
point  of  view.  The  T.  P.  Leathers,  1  Newb,  Adm.  421 ; 
Warder  v.  La  Belle  Creole,  1  Pet.  Adm.  46 ;  Marvin  on 
Wreck  and  Salvage,  174. 

It  has,  thirdly,  brought  the  rule  in  salvage  cases  into  con- 
formity with  both  the  English  and  American  rule  in  cases  of 
general  average.  No  valid  distinction  can  be  drawn  between 
the  two  cases,  and  in  the  latter  no  doubt  has  ever  rested  on 
the  point.  From  Magens  aud  Emerigon  to  Chief  Justice 
Best  (Brown  v.  Stapylton,  4  Bing.  119),  all  concur  in  the 
principle  that  all  cargo  put  on  board  for  the  purposes  of 
commerce,  however  light  its  weight,  and  considerable  its 
value,  —  gold,  silver,  or  jewels,  —  must  contribute  to  gen- 
eral average  losses  for  its  full  value,  and  a  doubt  has 
even  been  raised  as  to  whether  the  valuables  of  passen- 
gers not  actually  carried  about  their  persons  are  not  liable 
to  contribution. 

In  connection  with  what  is  above  said  as  to  contribu- 
tion to  general  average,  I  here  make  an  extract  from 
"  The  Law  of  General  Average  (English  and  For- 
eign)," by  Richard  Lowndes  (3d  edition),  London, 
1878,  at  p.  68,  ch.  6 :  — 

Salvage  and  Analogous  Expenses.  —  We  come  now  to  the 
second  great  class  of  general  average  losses,  namely,  extraor- 
dinary expenditures.  These  may  be  conveniently  divided 
under  two  heads :  salvage  or  expenses  analogous  to  salvage, 
and  expense  consequent  on  seeking  a  port  of  refuge. 

§  1.  Q/*  Salvage  in  General.  —  As  jettison  is  regarded  as 
the  type  or  simplest  form  of  a  general  average  sacrifice,  so 
salvage,  it  has  been  said,  may  be  regarded  as  the  type  of  a 
general  average  expenditure.  This,  however,  is  only  from 
one  point  of  view.     Salvage  is  always  an  extraordinary  ex- 


SALVAGE,  169 

pense,  and  is  always  incurred  in  order  to  rescue  the  thing 
salved  from  danger :  in  these  respects  it  is  a  perfect  form  of 
general  average  ;  but  it  is  not  always  incurred  for  the  com- 
mon safety  of  ship  and  cargo.  Whenever  it  is  so,  it  is  general 
average.^ 

In  the  distribution  of  proceeds,  salvage  services 
rendered  in  getting  a  vessel  off  a  reef  are  entitled  to 
priority  of  payment  as  against  a  claim  for  general 
average  arising  from  the  jettison  of  a  portion  <^  her 
cargo.* 

The  expenses  of  saving  ship  and  cargo  are  proper 
subjects  of  general  average.^ 

Salvage  is  generally  decreed  on  all  property  saved 
on  the  sea  or  wrecked  on  the  coast  of  the  sea.* 

The  uniform  rule  is  to  consider  the  service  per- 
formed as  one  general  salvage  service,  to  be  com- 
pensated by  awarding  a  certain  quantum  of  the  whole 
proceeds.^ 

No  distinction  is  made  in  awarding  salvage  between 
the  vessel  and  cargo,  or  between  different  portions  of 
the  cargo,  nor  will  the  court  assess  a  different  ratio  upon 
different  parts  of  the  property.* 

1  There  is  one  kind  of  salvage  *  The  Spaulding,  1  Brown  Adtn. 

which  i3  treated  like  general  aver-  &  Rev.  Cases,  310. 

agje,   though   not   for  tHe  common  •  McAndrewsr.  Thatcher,  3  Wall, 

safety,  and  that  is,  salvage  of  life.  366 ;  Birkley  v.  Presgrave,  1  East, 

Formerly,  no  reward  in  the  nature  220;  The  Congress,  2  Biss.  42;  Mont- 

of  salvage  was  legally  due  to  those  gomery  v.  Tyson,  1  Low.  1^33;  Joy 

who  saved  life  only,   without  also  v.  Allen,  2  Woodb.  &  M.  303;  Wil- 

saving   property  ;    although,    when  liams  v.  Suffolk  Ins.  Co.,  3  Sumn. 

both  were  saved  by  the  same  salvors,  270,  510 ;  Peters  r.  Warren  Insur- 

a  higher  reward  was  always  given  ance  Co.,  1  Story,  463. 

on  account  of  the  saving  of  life,  and  *  The  Cheeseman  v.  Two  Ferry 

the  whole  of  this  augmented  sum.  Boats,  374;  The  Emulous,  1  Sumn. 

being  nominally  for  saving  the  prop-  207. 

erty,  was  paid  by  ship  and  cargo  rat-  '  Montgomery  v.  TheT.  P.  Leath- 

ably.     Thus,  indirectly,  or  rather  in  ers,  Newb.  421. 

adisguised manner,  thesalvageof  life  •  Montgomery  r.  The  T.  P.  Leath- 

was  always  treated  as  general  average,  ers,  Newb.  421;  The  Albion  Lin- 


170  ADMIRALTY  LAW. 

Salvage  should  be  awarded  out  of  what  remains  after 
the  duties  on  the  gross  amount  are  paid.^ 

Salvage  is  awarded  in  case  of  goods  cast  ashore,  not- 
withstanding a  State  law  is  in  force  which  applies  to 
the  case.^ 

Government  property  is  liable  to  contribute  to  the 
salvage." 

So  of  cotton  belonging  to  the  United  States.* 

Freight  is  liable  to  pay  salvage,  as  well  as  the  ship 
and  cargo.^ 

The  presumption  is  that  prepaid  freight  can  be  re- 
covered back  as  not  earned  in  case  of  the  loss  of  the 
cargo,  and  therefore  should  be  considered  as  part  of 
the  property  saved  to  the  owners  of  the  ship.^ 

The  crew  contribute  to  salvage  in  whaling  and  fish- 
ing voyages,  as  it  is  only  on  what  escapes  the  perils 
of  the  seas  that  the  lays  can  be  reckoned.*^ 

Although  a  salvage  service  may  be  meritorious  and 
valuable,  yet  the  court  of  admiralty  being  limited 
to  the  remedy  by  sale  of  the  property  saved,  sal- 
vage is  not  allowed  for  rescuing  written  documents, 
such  as  bills  of  exchange,  or  evidences  of  debt  or  of 
title.^ 

Nor  is  it  awarded  on  money  found  on  a  drowned 

coin,  1  Low.  76;  The  Vesta,  2  Hagg.         *  The  Siren,  7  Wall.  161;   The 
Adm.  189.  S.  L.  Davis,  6  Blatchf.  138;  s.  c.  2 

1  The  Waterloo,  Blatchf.  &  H.    Bank.  Reg.  3. 

128;   Concklin  v.  The  Harmony,  1  ^  The  Dorothy  Foster,  6  C.  Rob. 

Pet.  Adm.  34.  88;  The  Progress,  Edw.  Adm.  210. 

2  Stevens  v.  The  Argus,  Bee,  170 ;  ^  The  Bark  Loveland,  5  Fed.  Rep. 
Peisch  V.  Ware,  4  Cranch,  347.  105  (1880). 

8  The  Davis,  10  Wall.  18;  Brown         ">  Montgomery  ».  Tyson,  1  Low. 

V.  Stapylton,  4  Bing.  119;  The  Mar-  134;   Utpadel  v.  Fears,  1  Sprague, 

quis  of  Huntly,  3  Hagg.  Adm.  246;  559;  Reed  v.  Hussey,  Blatchf.  &  H. 

The  Lord  Nelson,  Edw.  Adm.  79;  525;  The  Holder  Borden,  1  Sprague, 

United   States  v.  Wilder,  3  Sumn.  144. 

308;  The  Siren,  7  Wall.  161;  Briggs  s  xhe  Emblem,  2  Ware  (Dav.), 

V.  Light  Boats,  11  Allen,  157.  61. 


SALVAGE.  171 

passenger/  or  on  clothing  of  the  master  and  seamen 
left  on  board  an  abandoned  vessel.^ 

But  for  saving  the  trunks  of  a  passenger  containing 
a  quantity  of  silver  coin  salvage  was  allowed.^ 

The  owner  of  the  goods  saved  should  pay  salvage  in 
proportion  to  the  goods  saved  and  the  advantage  he  re- 
ceives; adding  a  reward  as  an  example  and  incentive  to 
others,  and  not  according  to  the  property  of  the  salvor.* 

Section  VII.  —  MISCONDUCT  OR  NEGLIGENCE  OF  SALVORS. 
EFFECT  OX    TUEIR  REMUNERATION. 

Forfeiture  for  Misconduct.  —  As  the  amount  to  be 
awarded  for  salvage  services  rests  entirely  in  the  dis- 
cretion of  the  court,  it  is  obvious  that  the  conduct  of 
the  salvors  may  have  a  very  material  effect  upon  their 
remuneration. 

The  court  requires  that  those  who  seek  its  aid  should 
come  before  it  with  clean  hands;  and  where  the  sal- 
vors are  proved  to  have  misconducted  themselves, 
their  remuneration  may  be  reduced,  and  even  alto- 
gether forfeited,  however  valuable  their  services  origi- 
nally may  have  been.* 

It  requires  a  very  strong  case,  however,  to  induce 
the  court  to  hold  salvage,  once  it  is  earned,  to  be 
entirely  forfeited.^ 

In  many  of  the  cases  where  salvors  have  been 
charged  with  misconduct  or  negligence,  compensation 

»  The  Amethyst,  2  Ware  (Dav.),         •  The  Lady  Worsley,  2  Spinks, 

20.  253;  The  Magdalen,  31  L.  J.  Adm. 

«  The  Rising  Sun,  1  Ware,  378.  22-24.     See  also  The  Schooner  Bos- 

»  The  Emblem,  2  Ware  (Dav.),  ton,  1   Sumn.   328-341;  The  Bello 

6L  Cornmes,  6  Wheat.  152 

«  Taylor  r.  The  Cato.  1  Pet.  Adm.         •  The  Atlas,  1  Lush.  518-52a. 
165;    Warder   v.   La  Belle   Creole, 
1  Pet.  Adm.  31. 


172  ADMIRALTY  LAW. 

has  been  refused  to  them  rather  because  their  efforts 
were  fruitless  in  consequence  of  their  conduct,  than 
from  the  misconduct  itself.^ 

There  are,  however,  several  instances  where  the 
court  refused  compensation,  although  the  salvage  had 
been  successfully  accomplished.^ 

There  are  many  cases  where  the  misconduct  of  the 
salvors  not  being  of  so  serious  a  nature  as  to  induce 
the  court  to  adopt  the  extreme  measure  of  visiting 
upon  them  an  entire  forfeiture  of  salvage,  it  has  pun- 
ished them  by  awarding  a  sum  much  less  than  under 
different  circumstances  they  would  have  been  enti- 
tled to.3 

In  The  Glasgow  Packet,*  a  vessel  went  ashore  near 
Gravesend  and  sank,  and  a  number  of  boatmen  com- 
menced getting  up  various  articles  from  her  decks  with 
boat-hooks ;  and  having  procured  two  anchors,  and 
hired  barges  and  lighters,  endeavored  to  raise  the  ves- 
sel, till,  upon  the  arrival  of  the  owners,  they  were  told 
that  their  services  were  not  required,  when  they  still 
continued  to  hover  round  the  vessel,  and  obtrude  their 
services,  and  some  of  them  persisted  in  coming  up  to 
London  in  the  vessel  after  she  had  been  raised.  The 
court  held  their  conduct  to  be  exceedingly  reprehensible, 
and  refused  to  award  them  anything  in  resj^ect  of  the 
services  they  had  obtruded  on  the  owners  after  their 
arrival. 

Although  the  court  will,  as  shown  in  the  preceding 

1  The  Duke  of  Manchester,  4  383.  See  also  The  Black  Boy,  3 
Notes  of  Cases,  575;  on  appeal,  6  Hagg.  386,  n. ;  The  San  Nicola,  6 
Moore  P.  C.  C.  91;  The  Atlas,  1  Irish  Jur.  91;  The  Glory,  14  Jur. 
Lush.  518.  676.     And  see  The  Prinz  Frederik, 

2  The  Martha,   Swa.  489.     See  2  Dods.  451. 

also    The    Barefoot,    14  Jur.   841 ;         *  2  W.  Rob.  306.     See  also  The 
The  Lady  Worsley,  2  Spinks,  253.       Dosseitei,  10  Jur.  865. 
*  The  Dantzic  Packet,  3  Hagg. 


SALVAGE.  173 

case,  refuse  any  reward  to  salvors  who  obtrude  upon 
the  master  of  a  vessel  assistance  which  he  refuses  to 
accept,  yet  where  services  are  rendered  to  a  vessel  in 
actual  distress,  it  will  not  require  from  the  salvors 
very  strict  proof  of  a  demand  or  acceptance  of  their 
help,  especially  where  the  circumstances  of  the  case 
are  such  that  the  master  would  not  be  justified  in  re- 
fusing to  avail  himself  of  the  assistance  offered  him.^ 

Where  the  salvors,  although  they  succeeded  in  com- 
pleting the  salvage,  improperly  refused  further  assist- 
ance which  had  been  offered  them  at  a  time  when 
the  success  of  their  efforts  was  doubtful,  the  court, 
to  mark  its  sense  of  their  misconduct,  diminished  the 
amount  of  their  remuneration.^ 

The  court  looks  with  disfavor  upon  exorbitant  de- 
mands by  salvors ;  but  although  there  is  some  author- 
ity for  saying  that  it  will  reduce  the  remuneration 
where  an  exorbitant  sum  has  been  claimed,^  there 
does  not  appear  to  be  any  instance  of  its  having 
done  so. 

The  misconduct  must,  however,  have  been  connected 
with  the  salvage  service.* 

The  proof  of  misconduct,  like  that  of  any  other 
criminal  charge,  rests  upon  those  who  impute  it. 

The  presumption  is  in  favor  of  innocence  ;  and  to 
establish  against  a  salvor  misconduct  involving  a  for- 
feiture of  salvage,  the  evidence  must  be  conclusive  ; 

•  The  Annapolis,  Lush.  355-375.  Rob.  259;   The  Mafrnolia,  29  L.  T. 

»  Tlie  Uosseitei,  10  Jur.  865.  See  40;    The    Elvira,    Gilp.    60;    The 

also    The     Eleanora    Charlotta,    1  Henry  Ewbank,  1  Sumn.  400-413; 

Hagg.  156,  where  I^rd  Stowell  cen-  The  North   Carolina,   15  Pet.  40; 

sured  salvors  for  taking  a  vessel  into  Lewis  v.  Tlie  Elizabeth  and  Jane, 

an  inconvenient  port,  and  unneces-  1  Ware,  35 ;   The  Nimrod,  14  Jur. 

sarily  remaining  in  iK)ssession.  942. 

»  The  John  and  Thomas,  1  Hagg.         *  The  Fielden,  11  W.  Rob.  156. 

157,   n.     See  also   The   Hector,   3  See  The   Hopewell,  2  Spinks,  249; 

Hagg.  90-95;   The  Towan,  2   VV.  The  Centurion,  1  Ware,  477. 


174  ADMIRALTY   LAW. 

that  is  to  say,  it  must  be  such  as  to  leave  no  reason- 
able doubt  in  the  mind  of  the  judge.^ 

The  court  will  look  with  disfavor  on  the  claims  of 
salvors  who  have  shown  mala  fides? 

The  courts  of  the  United  States  have  held  salvage 
to  be  entirely  forfeited  by  bad  faith  and  corruption  on 
the  part  of  the  salvors.^ 

Robbery  by  the  salvors  of  any  portion  of  the  stores 
or  cargo  of  the  vessel  saved  would,  as  a  matter  of 
course,  if  proved,  be  an  answer  to  a  suit  for  salvage.* 

Such  a  charge  must  be  distinctly  proved,  and  where 
salvors  are  on  board  a  vessel  for  the  purpose  of  render- 
ing her  assistance,  they  are  entitled  to  consume  all  that 
is  necessary  of  the  stores  for  the  purpose  of  maintaining 
themselves  whilst  in  the  discharge  of  their  duty  ;  and 
even  if  there  be  some  waste,  under  the  circumstances, 
the  court  will  refuse  to  look  into  minutice,  or  to  rely 
upon  them.^ 

In  The  Mulhouse,®  part  of  the  salving  crew  remained 
on  board  the  derelict  whilst  the  others  returned  to 
port  in  their  vessel  with  some  kegs  of  specie.  One 
keg  was  stolen  by  some  of  those  who  returned,  and  it 
was  held  that  only  those  who  remained  on  board  the 
derelict  were  entitled  to  salvage. 

In  The  S.  A.  Boice,'^  a  vessel  had  been  captured 
by  a  privateer,  and  after  being  partly  plundered  was 
suffered  to  go  adrift  without  a  crew,  and  the  persons 

1  The  Atlas,  1  Lush.  518.  See  <  The  Florence,  16  Jur.  572.  See 
also  The  Charles  Adolphe,  Swa.  The  Dove  and  Cargo,  1  Gall.  585; 
153-156.  The  Blaireau,  2  Cranch,  239;   The 

2  The  Magdalen,  31  L.J.  Adm.  Missouri,  18  Am.  L.  R.  38;  The 
22,  24,     See  also  The  Westminster,  Boston,  1  Sumn.  328. 

1  W.  Rob.  229.  6  The    Howthandel,    1    Spinks, 

'  Houseman    v.    The    Schooner  25-29.     See  also  The  Louisa,  2  W. 

North   Carolina,   15   Pet.  40;   The  Rob.  221-224. 
Leander,  Bee,  260.     See  also   The         «  22  Am.  L.  R.  276. 
Blaireau,  2  Cranch,  239.  »  13  l.  t.  n.  s.  65. 


SALVAGE.  175 

claiming  to  be  salvors  surrounded  the  vessel  in  small 
boats  and  plundered  her  of  everything  they  could,  and 
afterwards,  on  her  owners  arriving,  assisted  them  in 
getting  her  off,  the  court  held  that  they  could  not 
maintain  their  action  for  salvage ;  but  as  the  owners 
ofiFered  to  pay  them  for  what  they  had  done,  they 
were  allowed  to  receive  a  quantum  meruit  for  work 
and  labor,  but  without  costs. 

It  was  considered  in  The  Rising  Sun^  that  fraud 
or  actual  embezzlement  on  the  part  of  the  master  would 
defeat  the  claim  of  the  owner  of  the  salving  vessel. 

But  in  The  Missouri's  Cargo  ^  it  was  decided  other- 
wise, the  court  holding  that  only  the  guilty  party 
should  suffer. 

Where  the  salvor  has  been  guilty  of  misconduct,  the 
owner  is  not  prevented  from  raising  it  as  a  defence,  by 
the  fact  that  he  has  negotiated  with  the  view  of  refer- 
ring the  salvage  claim  to  arbitration.^ 

Where  the  defendant  in  a  salvage  suit  intends  to 
raise  the  defence  of  misconduct  on  the  part  of  the  sal- 
vors, he  should  do  so  at  the  earliest  possible  stage  of  the 
proceedings.* 

He  will  not  be  allowed  to  set  up  the  charge,  unless  it 
is  distinctly  brought  forward  in  the  pleadings.^ 

In  the  case  of  The  C.  M.  Titus,®  where  there  was 
collusion  between  the  libellant  and  the  owner  of  the 
boat  prejudicial  to  the  owner  of  the  cargo,  the  libel 
was  dismissed  with  costs,  citing  The  Lady  Worsley,  2 
Spinks,  256. 

The  rules  of  admiralty  which  deny  salvors  all  com- 

1  1  Ware,  385.  *  The  City  of  Edinburgh,  2  Hagg. 

*  1  Sprague,  260.    See  also  The  833. 
Fair  American,  1  Pet.  Adra.  87.  *  The  Minnehaha,  1  Lnsh.  836. 

»  The  Martha,   Swa.  489;  The         •  7  Fed.  Rep.  826  (1881). 
Parissima  Concepcion,  7  Notes  of 
Cases,  150. 


176  ADMIRALTY  LAW. 

pensation  when  guilty  of  misconduct  or  bad  faith 
apply  not  only  to  embezzlement,  but  to  any  miscon- 
duct,— such  as  false  representations,  exaggerating  the 
danger  or  hardship,  and  to  enhance  the  reward, — 
spoliation,  smuggling,  an  obtrusion  of  unnecessary 
service,  and  a  refusal  to  accept  necessary  or  needful 
assistance.^ 

Compensation  presupposes  good  faith,  meritorious 
service,  complete  restitution,  and  incorruptible  vigi- 
lance, so  far  as  the  property  is  within  the  reach  and 
under  the  control  of  the  salvors.^ 

So,  gross  negligence  or  wanton  injury  to  the  prop- 
erty saved,^  as  a  neglect  to  inform  the  injured  vessel 
beforehand  of  imminent  and  secret  danger  when  able 
to  give  the  warning,*  or  the  wilful  omission  to  comply 
with  a  State  law  regulating  the  care  and  custody  of 
wrecks,  will  defeat  the  claim  to  compensation  for  sal- 
vage services.^ 

Misconduct  as  to  wrecked  property  is  a  failure  to  de- 
liver to  the  sheriff,  and  libel  in  admiralty  for  salvage.^ 

The  law  visits  any  embezzlement,  however  small, 
with  an  entire  forfeiture  of  all  claim  for  salvage,'^  either 
direct,  or  by  connivance  with  others.^ 

1  Harley  v.  Gawley,  2  Sawyer,  Blaireau,  2  Cranch,  240 ;  The  Ris- 
7;  The  Bello  Corrunes,  6  Wheat,  ing  Sun,  1  Ware,  381;  The  Boston, 
152;  The  Boston,  1  Suinn.  341.  1    Sumn.    328;    Cromwell   v.    The 

2  The  Boston,  1  Sumn.  328;  Island  City,  1  Cliff.  229;  s.  c.  1 
Cromwell  v.  The  Island  City,  1  Cliff.  Black,  121 ;  The  Barefoot,  1  Eng.  L. 
229.  &  Eq.  661 ;  The  Duke  of  Manchester, 

«  The  Sumner's  Apparel,  1  Brown  2  W.  Rob.  470;   The  John  Perkins, 

Adm.  52.  1  Law   Rep.  n.   s.  87;    Harley  v. 

*  American     Insurance    Co.    v.  Gawley,  2   Sawyer,   7;  The   L.   T. 

Johnson,  Blatchf.  &  H.  10.  Knights,  1  Low.  397;  Flinn  i;.  The 

6  Harley  V.  Gawley,  2  Sawyer,  7.  Leander,  Bee,  262;  Brevoor  v.  The 

8  Harley  y.  Gawley,  2  Sawyer,  7;  Fair   American,   1  Pet.   Adm.   99; 

Hamilton   r.  Davis  5   Burr.   2732;  Tlie   Bello  Corrunes,  6  Wheat.  152; 

Wilkie  V.  The  St.  Petre,  Bee,  83.  The   Dove,  1  Gall.  585;   The  Mis- 

T  Lewis   V.    The    Elizabeth    and  souri's  Cargo,  1  Sprague,  270. 
Jane,  1  Ware,  43;   Mason  v.   The         »  xhe    Boston,    1    Sumn.    340; 


SALVAGE.  177 

Where  salvors  stripped  a  vessel  having  her  name 
and  port  painted  on  her  stern,  and  carried  the  prop- 
erty saved  directly  past  her  home  port,  they  were 
guilty  of  embezzlement,  and  forfeited  their  right  to 
compensation.* 

The  fraudulent  acts  of  the  master  in  concealing 
a  portion  of  the  properties  saved  will  not  deprive 
the  crew  of  their  right  to  salvage  on  all  property 
saved.* 

A  claim  for  salvage  is  in  the  nature  of  a  general 
lien,  and  any  irregular  proceeding  on  the  part  of  the 
salvors  furnishes  reasons  to  diminish  the  reward.* 

The  court  will  mark  its  disapproval  of  tampering 
with  the  log,  by  condemning  the  vessel  to  pay  the  costs 
of  the  action.* 

Umkilf Illness.  —  The  amount  of  skill  and  knowledge 
which  salvors  are  expected  to  possess  depends,  in  a 
great  measure,  upon  circumstances.  Although,  ordi- 
narily, where  persons  undertake  to  perform  a  salvage 
service,  the  court  will  not  require  them  to  be  finished 
navigators,  it  does  expect  that  they  should  possess  and 
exercise  such  a  degree  of  prudence  and  skill  in  the 
performance  of  their  task  as  persons  in  their  vocation 
in  life  usually  do  possess,  and  are  fairly  expected  to 
display.^ 

The  court  will  look  with  less  leniency  upon  the  con- 
duct of  incompetent  persons  who  assume  the  character 

Mason  v.  The  Blaireau,  2  Cranch,  Ware,  378.    And  see  The  Florence, 

240;  Spurr  v.   Pearson,   1   Mason,  20  Eng.  L.  &Eq.  61)7;  The  Barefoot, 

104.  1  Eng.  L.  &  Eq.  661. 

*  The  Sumner's  Apparel,  1  Brown  •  Peisch  v.  Ware,  4  Cranch,  347. 
Adra.  52.  *  Freight  Money  of  The   Ana- 

•  The      Missouri's      Cargo,      1  stasia,  1  Ben.  16. 

Sprague,  270;  Ma.son  i;.  The  Blair-         »  The  Cape  Packet,  8  W.  Rob. 
eau,  2   Cranch,  240;   The    Boston,    122-125. 
1  Sumn.  328;    The  Rising  Sun,  1 

12 


178  ADMIRALTY  LAW. 

of  salvors,  when  there  are  others  present  willing  to 
engage  in  the  undertaking,  and  competent  to  bring  it 
to  a  successful  issue. ^ 

In  The  Atlas,^  the  general  rule  is  stated  to  be  that, 
where  salvage  has  been  finally  effected,  no  mistake  or 
error  of  judgment  in  the  manner  of  procuring  it,  and 
no  misconduct  short  of  that  which  is  wilful  and  may 
be  considered  criminal,  and  that  proved  beyond  a  rea- 
sonable doubt  by  the  owners  resisting  the  claim,  will 
work  an  entire  forfeiture  of  salvage. 

In  The  Duke  of  Manchester,^  The  Neptune,*  The 
Dygden,^  and  The  Lockwoods,^  which  are  cited  as  au- 
thorities for  the  proposition  that  want  of  skill  occa- 
sions a  forfeiture  of  salvage,  no  complete  salvage  was 
effected,  the  efforts  of  the  salvors,  in  consequence  of 
their  own  negligence,  resulting  in  no  benefit  to  the 
vessel. 

Although  it  may  be  a  question  of  doubt  whether 
negligence  or  unskilfulness  in  the  salvors  will  work  an 
entire  forfeiture  of  salvage,  still,  if  the  property  saved 
sustains  any  injury  in  consequence  of  such  negligence 
or  unskilfulness,  the  court  will  impose  upon  the  salvors 
a  part  of  the  burden  of  the  loss  by  diminishing  their 
remuneration.  The  extent  of  this  diminution  is  not 
measured  by  the  amount  of  loss  or  injury  sustained, 
but  is  framed  upon  the  principle  of  proportioning  the 
diminution  to  the  degree  of  negligence,  not  to  the 
consequences.' 

1  The  Dygden.  1  Notes  of  Cases,  «  Lush.  518-528.    See  also  The 

115.     See  also  The  Neptune,  1  W.  Rosalie,   1    Spinks,    188-191;    The 

Rob.   297-300;   The  Magdalen,   31  Magdalen,  31  L.  J.  Adm.  22. 

L.  J.  Adm.    22;   The   Howthandel,  »  2  W.  Rob.  470. 

1  Spinks,  25-27;  The  Duke  of  Man-  *  1  W.  Rob.  297. 

Chester,  2  W.  Rob.  470;  The  Lock-  6  1  Notes  of  Cases,  115. 

■woods,  9  Jur.  1017;  The  John  Dry-  «  9  Jur.  1017. 

ant,  5  Irish  Jur.  233.  '  The   Cape  Packet,  3  W.  Rob. 


SALVAGE.  179 

And  where  a  steamer  having  got  a  vessel  ofE  the 
Goodwin  Sands,  where  she  had  been  aground,  took  her 
in  tow,  and  the  vessel  afterwards,  in  consequence  of 
the  negligence  of  those  on  board  the  steamer,  got 
aground  upon  the  Sandwich  Flats,  the  salvage  claimed 
by  the  steamer  was  held  to  be  entirely  forfeited,  upon 
the  ground  that  the  vessel  had  been  led  into  a  peril  as 
great  as  that  from  which  she  had  been  rescued.^ 

Salvors  are  liable  for  damages  done  to  the  sails  of 
the  vessel  saved,  by  being  negligently  left  exposed  to 
sparks  from  the  salving  vessel.'' 

If,  in  consequence  of  the  imskilfulness  or  negligence 
of  those  on  board  her,  the  salving  vessel  should  come 
into  collision  with  the  vessel  which  she  is  endeavoring 
to  assist,  she  will  be  held  liable  in  damages  as  in  an 
ordinary  case  of  collision.  Thus,  where  the  steamer 
"  Thetis  "  fell  in  with  the  steamer  "  Sardis,"  which  had 
been  disabled  in  consequence  of  an  accident  to  her 
machinery,  and,  in  endeavoring  to  tow  her  into  port 
for  an  agreed  sum,  negligently  came  into  collision  with 
and  sunk  the  disabled  vessel,  she  was  held  to  be  solely 
blamable,  and  condemned  in  damages.* 

If  the  salvors  employ  an  agent  to  assist  them  in  the 
imdertaking,  and  the  property  saved  sustains  any  loss 
in  consequence  of  the  negligence  or  unskilfulness  of 
the  agent,  the  salvors,  however  innocent  they  may  be, 
and  however  meritorious  as  to  their  own  acts,  must 
still  suffer  for  it  in  the  diminished  amount  of  com- 
pensation.* 

122-12.5.    See  also  The  Perla,  Swa.  ^  The  Duke  of  Manchester  (on 

230;  The  Piinz  Frederik,  2  Dods.  appeal),  5  Notes  of  Cases,  470. 

451;  The  Magdalen,  31  L.  J.  s.  8  «  The  Senator,  1   Brown   Adm. 

Adra.  22.     Ah  to  the  responsibility  &  R.  Cases,  372. 

of  salvors  for  the  negligence  or  mis-  «  The  Thetis,  L.  R.  2  Adm.  36.5. 

conduct  of  their  agents,   see  The  *  Per   Sir  John   Coleridge,  The 

AUas,  1  Lush.  518-527.  AUas,  Lush.  518-529.    See  The  Bo- 


180  ADMIRALTY  LAW. 

If,  however,  the  services  of  the  salvor  terminate  be- 
fore the  negligent  act  of  the  third  party  takes  place, 
then,  as  he  would  not  under  such  circumstances  be 
acting  as  their  agent,  they  would  not,  of  course,  be 
answerable  for  his  misconduct.  Thus,  where  a  set  of 
salvors  brought  a  vessel  into  a  position  of  safety  from 
ordinary  peril,  but  not  to  anchor,  and  then  gave  her 
in  charge  to  a  licensed  pilot,  it  was  held  that  they  were 
not  prejudiced  in  their  claim  for  salvage  by  injuries 
subsequently  caused  to  the  ship  through  the  negligence 
of  the  pilot.-^ 

The  question  has  been  discussed  (in  America)  as  to 
how  far  the  owner  of  the  salving  vessel  is  responsible 
for  losses  sustained  by  the  property  saved  through  the 
unseaworthiness  of  his  vessel  or  the  misconduct  of  his 
crew ;  and  it  has  been  held  that,  although  the  owner  of 
an  ordinary  trading- vessel  would  not  be  liable  for  such 
consequences,^  a  different  rule  prevails  with  regard  to 
a  licensed  wrecking-vessel.  There  the  master  and  crew 
are  employed  by  the  owner  for  the  sole  purpose  of  as- 
sisting vessels  in  distress,  and  he  is  liable  for  any  mis- 
conduct by  them  in  the  course  of  their  employment. 
Whoever  the  salvors  may  be,  whether  licensed  wreckers 
or  not,  they  are  not  only  bound  to  be  scrupulously 
honest  themselves,  but,  whilst  the  property  is  in  their 
custody,  they  are  expected  to  employ  every  reasonable 
degree  of  diligence  to  guard  it  from  plunder  by  others  ; 
and  any  negligence  in  this  respect  will  affect  the  amount 
of  their  remuneration.^ 

Salvors  are  under  implied  obligations  to  use  good 


marsund,  Lush.  77;  The  Duke  of  276;    The  Pacific,  22  Am.   L.    R. 

Manchester,  2  W.  Rob.  470.  289. 

1  The  Bomavsund,  1  Lush.  77.  «  The  Joha  Perkins,  19  Am.  L. 

«  The  Mulhouse,  22  Am.  L.  R.  R.  490. 


SALVAGE.  181 

faith,  honesty,  skill,  and  energy  in  their  undertaking;  *  to 
land  property  saved  at  the  nearest  port  of  safety,  and 
see  that  it  is  properly  cared  for.'*  But  due  regard  should 
be  paid  by  the  salvors  to  the  convenience  of  the  owners 
in  determining  to  what  port  the  vessel  should  be  taken.' 

The  salvors  should  not  retain  possession  of  the  prop- 
erty to  the  detriment  thereof,  or  the  inconvenience  of 
the  master  and  crew.* 

They  are  required  to  exercise  the  same  degree  of 
care  in  keeping  the  property  placed  in  their  custody 
as  a  prudent  man  ordinarily  exercises  in  keeping  his 
own ;  and  negligence  in  this  respect  either  diminishes 
the  reward,  or  works  a  total  forfeiture  of  salvage.^ 

They  are  bound,  in  good  faith,  to  consult  the  interest 
of  the  owner,  as  well  as  their  own.' 

In  stripping  an  abandoned  vessel  of  her  apparel  and 
furniture,  salvors  are  bound  to  the  exercise  of  reason- 
able care.'' 

A  vessel  undertaking  in  good  faith  to  perform  the 
office  of  salvor  to  a  derelict  vessel,  held  not  responsible 
for  the  latter  having  been  wholly  lost  in  the  effort  to 
save  her.' 

No  claim  for  demurrage  or  detention  of  a  ship  under 
warrant  of  arrest  issued  by  the  unsuccessful  promoters 
of  a  salvage  suit  can  be  allowed,  in  the  absence  of  mala 
fides  or  malicious  negligence.* 

1  The  Ida  L.  Howard,  1  Low.  3;         •  The  Amethyst,  2  Ware  (Dav.), 

The  John  Perkins,  3  Ware,  89.  20. 

*  The  Sumner's  Apparel,  1  Brown  ^  The  Sumner's  Apparel,  1  Brown 
Adra.  52.  Adm.  52. 

*  TheEleanoraCharlotta,inagg.  •  The  Laura,  14  Wall.  3,36;  Gil- 
Adm.  156.  And  see  L'Esperance,  1  ham  v.  The  Tyler,  3  Woods,  111. 
Dods.  46.  (As  I  was  the  proctor  for  The  Tyler, 

*  The  Lady  Worsley,  2  Spinks  I  know  that  the  name  of  libellant 
Adm.  253;  The  Eteanora  Charlotta,  is  misprinted  Oilman  for  Gilham.) 

1  Hagg.  Adm.  156.  •  The  Strathnaver  (Privy  Coun- 

»  The  Mulhouse,  12  Law  Rep.  cil,  1875),  1  L.  R.  Appeal  Cases, 
K.  8.  276.  58. 


182  ADMIRALTY   LAW. 


Sectiox  VIIL  — detention   OF  PROPERTY  BY  SALVORS. 

It  has  been  held  at  common  law  that,  where  salvage 
is  effected  on  the  high  seas,  the  salvor  is  entitled  to 
retain  possession  of  the  property  saved  until  his  claim 
has  been  satisfied.^ 

This  right  of  the  salvor  has  been  recognized  in  the 
court  of  admiralty,  but  to  a  much  more  limited  extent, 
that  court  looking  to  all  the  circumstances  of  the  case, 
and  regarding  the  necessity  that  may  exist  for  detain- 
ing the  property  as  a  means  of  securing  the  claims  of 
the  salvor  as  the  very  foundation  of  the  right.'^ 

It  has  been  laid  down  that  when  once  a  vessel  has 
been  abandoned  by  her  master  and  crew  in  conse- 
quence of  real  danger,  for  the  purpose  of  saving  their 
lives,  then  whatever  persons  get  possession  of  that  ves- 
sel and  are  competent  to  render  salvage  service,  have 
a  right  to  retain  possession  of  her  until  she  is  either 
voluntarily  given  up,  or  they  are  divested  by  due 
course  of  law.^ 

And  salvors  have,  under  special  circumstances,  been 
considered  justified  in  taking  the  vessel  into  port  with- 
out delaying  to  take  on  board  the  crew  which  had 
abandoned  her.* 

And  they  have  also,  under  special  circumstances, 
been  held  entitled  to  retain  possession  of  a  vessel  found 
derelict,  though  the  master  and  crew  return  to  her.*^ 

1  Hartfort  v.  Jone^l  Lord  Ray-         «  The  Glasgow  Packet,  2  W.  Rob. 

mond,  393.     See  alsoVicholson  v.  306,  312,  313. 
Chapman,   2   H.   Black.  254;    The         «  The  Tritonia,  5  Notes  of  Cases, 

Nicolai  Heinrich,  17  Jur.  329.     See  Supp.    ii.     See   also    The   Dantzic 

also  to  the  same  effect  The  Royal  Packet,  3  Hagg.  383,  385. 
William,  Stewart's  Vice- Adm.  Ill;         *  The   Orbona,    1    Spinks,    161, 

The  Bee,  Ware,  336;  Lewis  v.  The  165. 

Elizabeth  and  Jane,  Ware,  41 ;  The         ^  jhe  Gertrude,  30  L.  J.  Adm. 

John  Gilpin,  Olcott,  77;  Baker  i;.  130. 
Hoag,  3  Barb.  S.  C.  Rep.  203. 


SALVAGE.  -  183 

The  retention  of  the  exclusive  possession  and  control 
of  the  vessel  by  the  salvors,  where  the  master  and  crew 
reappear,  can,  however,  only  be  justified  by  necessity.^ 

And  the  right  of  the  salvors  in  this  respect  is  one 
depending  so  entirely  upon  the  peculiar  circumstances 
of  each  case,  that  the  court  has  refused  to  lay  down 
any  general  rule  upon  the  subject.^ 

If,  however,  the  vessel  be  not  derelict,  as  where,  for 
instance,  the  master  and  crew  leave  her  for  the  purpose 
of  obtaining  and  returning  with  assistance,  and  without 
the  intention  of  abandoning  her,  the  occupying  salvor 
is  bound  to  submit  himself  to  the  orders  of  the  master, 
when  he  appears  and  claims  his  authority.  The  master, 
under  such  circumstances,  is  entitled  to  resume  charge 
of  the  vessel,  to  employ  whom  he  pleases,  and  to  take 
what  measures  he  thinks  fit  for  the  preservation  of  the 
ship.' 

As  between  the  salvors  and  the  owners  of  the  salv- 
ing ship,  it  has  been  held  that  the  property  saved  or 
the  remuneration  awarded  for  it  ought,  until  distribu- 
tion, to  be  in  the  custody  of  the  salvors,  and  not  in 
that  of  the  owners  of  the  salving  vessel.* 

The  salvors'  title  to  remuneration  and  their  maritime 
lien  on  the  vessel  is  not  in  any  way  impaired  or  affected 
by  their  giving  up  possession  to  the  owner.*^ 

Lord  Stowell :  "  It  is  an  ill-founded  and  absurd  no- 
tion that  unless  salvors  stick  to  the  ship  they  forfeit,  or 
at  least  impair,  their  title  to  remuneration.  It  is  very 
desirable  that  salvors  generally  should  know  that,  in 

»  The  Gertrude,  30  L.  J.  Adm.         »  Tlie  Champion,   Br.   &  Lush. 

130,  Dr.  Lushington.     "Itisexpe-  69-71. 

dient,   however,   where    it  can    be         *  The  Princess  Helena,  30  L.  J. 

done,  to  permit  a  master  and  crew  Adm.  137,  140. 
to  approach  their  own  vessel."  *  The£leanoraCharlotta,lHagg. 

*  The  Cleopatra,  37  L.  J.  Adm.  31.  150. 


184  ADMIRALTY  LAW. 

order  to  maintain  their  rights,  it  is  perfectly  unneces- 
sary to  remain  on  board  the  vessel  which  may  have  re- 
ceived their  assistance."  ^ 

"When  once  the  salvage  has  been  completed  and  the 
vessel  brought  into  port,  the  salvors  will  not  be  justi- 
fied in  retaining  possession  for  any  greater  length  of 
time  than  may  be  necessary  for  the  purpose  of  securing 
their  demands  against  the  owner.  This  necessity  the 
court  of  admiralty  regards  as  the  very  foundation  of 
the  right ;  ^  and  it  has  even  gone  so  far  as  to  hold  sal- 
vage to  be  entirely  forfeited,  on  the  ground,  among 
others,  that  the  salvor  had  improperly  kept  possession 
of  the  property  saved,  instead  of  delivering  it  up  to  an 
agent  of  the  owner  who  was  on  the  spot.^ 

A  salvor  has  a  qualified  property  in  the  articles  saved, 
and  he  need  not  remain  in  the  actual  possession  in  order 
to  maintain  his  rights.* 

The  John  Perkins,  3  Ware,  89 ;  The  Bee,  1  Ware, 
332  ;  The  John  Gilpin,  Olcott,  77  ;  A  Box  of  Bullion,  1 
Sprague,  57;  The  Missouri's  Cargo,  1  Sprague,  260; 
The  Amethyst,  2  Ware  (Dav.),  20;  The  Maria,  Edw. 
Adm.  175.  And  see  the  Brevoor  v.  The  Fair  Ameri- 
can, 1  Pet.  Adm.  87 ;  Packard  v.  The  Louisa,  2  Woodb. 
&  M.  48 ;  Hartfort  v.  Jones,  1  Ld.  Raym.  393  ;  2  Salk. 
654 ;  Osborne  v.  Rogers,  1  Saund.  264  ;  Baring  v.  Day, 
8  East,  57 ;  The  Blenden  Hall,  1  Dods.  414 ;  The 
Charlotta,  2  Hagg.  Adm.  361;  The  Eugene,  3  Hagg. 
Adm.  156;  The  Effort,  3  Hagg.  Adm.  165;  The  Queen 
Mab,  3  Hagg.  Adm.  242 ;  Seaman  v.  Erie  R.  R.  Co.,  2 
Ben.  132 ;  The  Emblem,  2  Ware  (Dav.),  61. 

1  See  The  H.  D.  Bacon,  Newb.  »  The  Lady  Worsley,  2  Spinks, 

274;  The  Emblem,  Daveis,  61.  253.    See  also  The  Towan,  8  Jur.  220. 

a  The  Glasgow  Packet,  2  W.  Rob.  *  Eads   v.    The   H.    D.    Bacon, 

306.  Newb.  274. 


SALVAGE.  185 

The  salvors  may  retain  possession  of  the  goods 
saved  until  the  proper  compensation  is  made  for  their 
trouble.^ 

So  as  to  salvors  of  goods  cast  away.^ 

If  the  salvor  surrenders  the  property  to  the  owner,  to 
the  extent  of  its  value  he  may  hold  the  owner  person- 
ally for  a  proper  salvage  compensation.* 

The  lien  for  salvage  takes  precedence  of  prior  mari- 
time liens,*  and  against  a  claim  for  general  average  aris- 
ing from  jettison.* 

Where  services  are  rendered  in  getting  a  vessel  off  a 
reef,  in  the  distribution  of  the  proceeds  they  are  enti- 
tled to  a  priority  over  a  claim  for  general  average  from 
a  jettison,  although  one  of  the  salvors  had  the  promise 
of  a  third  party  to  pay  him.' 

The  finder  becomes  the  legal  possessor,  and  his  claim 
takes  precedence  of  all  other  titles.^ 

So  possession  taken  of  an  abandoned  vessel  gives  the 
right  to  retain  it  till  salvage  completed,  as  against  all 
others.^ 

They  cannot  be  divested  of  their  interest  until  adju- 
dication ;  ^  and  there  is  no  difference  in  principle  before 
and  after  property  is  brought  to  a  place  of  safety .^^ 

1  Ilartfort  v.  Jones.  1  Ld.  Raym.         »  The  John  Wurts,  Olcott,  470; 

393;  Baring  c.  Day,  8  East,  57;  The  Lewis  v.  The  Elizabeth  and  Jane,  1 

Glasgow  Packet,  8  Jur.   675;   The  Ware,  41;  Wilkie  v.  The  St.  Petre, 

Towan,  8  Jur.  222;  Clark  v.  Cham-  Bee,  83. 
berlain,  2  Mees.  &  W.  78.  «  The  John  Gilpin,  Olcott,  81; 

«  Hartfort  w.  Jones,  1  Ld.  Raym.  Tlie  Maria,  Edw.  Adra.  175;  Tho 

363;  2  Salk.   656;  Clayton  v.  The  Eugene,  3  Hagg.  Adra.   156;   The 

Harmony,  1  Pet.  Adm.  74.  Queen  Mab,  3  Ilagg.  Adm.  242;  The 

»  Seaman  v.  Erie  R.  R.  Co.,  2  Dantzic  Packet,  3  Hagg.  Adm.  38:}; 

Ben.   132;   The   Emblem,   2   Ware  The  Effort,  3  Hagg,  Adm.  165;  Hand 

(Dav.),  61.  V.  The  Elvira,  Gilp.  60. 

*  Barney  v.  Eaton,  1  Biss.  212.  »  The  Nicolai  Heinrich,  22  Eng. 

*  The  Spaulding,  1  Brown  Adm.  L.  &  Eq.  615. 

310.  w  The      Missouri's      Cargo,      1 

*  The  Spaulding,  1  Brown  Adm.  Sprague,  270,  distinguishing  The 
310.  Boston,  1  Sumn.  328. 


186  ADMIRALTY  LAW. 

After  a  vessel  has  been  brought  into  port  by  salvors, 
her  owners  have  no  right  to  take  her  to  another  port 
without  the  consent  of  the  salvors.^ 

A  salvage  service  in  raising  and  preserving  a  steamer 
has  a  priority  of  lien  over  claims  for  wages  earned  and 
supplies  furnished  before  the  accident.^ 

The  agreement  to  pay  salvage  creates  a  valid  lien/ 
but  prior  lien-holders  are  not  concluded  as  to  the 
amount  of  compensation  agreed  on.* 

The  fact  that  a  salvor  is  also  a  mortgagee  of  the 
salved  vessel  does  not  deprive  him  of  his  preferred 
claim  to  salvage.^ 

By  the  State  statute  of  California,  April  10,  1850, 
concerning  wrecks,  the  title  to  wrecked  property, 
whether  a  wreck  in  the  technical  sense  of  the  term, 
or  flotsam,  jetsam,  or  ligan,  or  abandoned  in  a  tempest 
with  no  buoy  attached,  is  not  divested  out  of  the  true 
owner,  nor  will  the  sinking  and  abandonment  of  a  ves- 
sel divest  the  owners  of  title.* 

The  rights  of  salvors  are  not  lost  by  a  temporary 
leaving ;  "^  so,  if  relieved  by  other  salvors  they  do  not 
lose  their  rights.^ 

The  question  will  always  resolve  itself  into  a  consider- 
ation of  circumstances  attending  each  particular  case.* 

1  The  Blenden  Hall,  IDods.  414;  The  Elizabeth  and  Jane,  1  Ware, 
Barney  v.  Eaton,  1  Biss.  242.  44;  The  Aquila,  1  C.  Ro!).  32. 

2  Collins  V.  The  Fort  Wayne,  1  ^  Harley  v.  Gawley,  2  Sawyer,  7; 
Bond,  484;  Tlie  Neptnne,  1  Hagg.  Baker  t>.  Hoag,  7  N.  Y.  555;  Haniil- 
Adm.  227;  Jones  v.  The  Massasoit,  ton  v.  Davis,  5  Barr,  2732. 

7  Law  Rep.  522.  "^  The  Amethyst,  2  Ware  (Dav.), 

8  The  Williams,  1  Brown  Adm.  20. 
216;  The  Emulous,  1  Sumn.   207;  ^  The  Henry  Ewbank,  1  Sumn. 

The  Centurion,  1  Ware,  477 ;  Bearse  400;  The  Amethyst,  2  Ware  (Dav.), 

V.  Pigs  of  Copper,  1  Story,  314.  20;  The  Eugene,  3  Hagg.  Adm.  150; 

*  Collins  V.  The  Fort  Wayne,  1  The  Effort,  3  Hagg.  Adm.  1G5;  The 

Bond,  47G.  Blenden  Hall,  1  Dods.  414. 

6  The  Bee,  1  Ware,  332;  Harley         «  The    Salacia,    2    Hagg.    Adm. 

V.  Gawley,  2  Sawyer,  10;  Lewis  v.  262. 


SALVAGE.  187 

Whoever  first  obtains  possession  of  a  lost  anchor  may 
hold  it  till  his  salvage  is  paid.^ 

A  ship  was  libelled  for  salvage,  and  a  decree  for  sal- 
vage rendered.  The  sureties  for  the  claimants,  the 
owners,  were  compelled  to  pay  the  salvage  decree. 
Held,  that  they  were  not  entitled  to  priority,  for  the 
sum  so  paid,  over  valid  mortgages  which  antedated  the 
salvage  services.^ 

Lien.  —  Where  a  salvage  service  is  actually  rendered 
in  a  case  like  the  present,  there  is  no  doubt  the  lien 
thereby  created  extends  to  the  entire  time  employed, 
including  going  and  returning.^ 

The  going  to  the  ship  is  a  part  of  the  service,  as 
much  as  the  labor  after  arrival.* 

Subsequent  salvage,  when  it  is  of  a  meritorious  kind, 
takes  precedence  of  antecedent  wages."^ 

The  suitor  in  salvage  is  highly  favored  by  the  law, 
on  the  assumption  that,  without  his  assistance,  the  res 
might  have  been  wholly  lost.  Salvage  is  privileged 
before  the  original  or  prior  wages  of  the  ship's  crew, 
on  the  ground  that  they  are  saved  to  them  as  much  as 
or  eadem  raiione  qua  the  ship  and  cargo  are  saved  to 
their  owners.' 

In  the  case  of  The  Bark  Penelope,'  it  was  held  that 
a  salvor  has  no  right  or  authority,  after  the  vessel  has 
been  brought  into  port,  to  provide  supplies,  so  as  to 
charge  the  owner,  or  create  a  lien  upon  the  vessel. 

^  One  Anchor  and  Chain,  2  Low.  L.  R.  465  ;  The  Susan,  1  Sprague, 

550.  499. 

'  Roberts  r.  The  Huntsville,  3         •  Coote's  Practice,  2d  ed.,  Lon- 

Woods,  386.  don,  1869,  p.  136. 

•The    Williams,    Brown    Adra.         •  Selina,  2  Notesof  Cases,  18.  19; 

&  R.  R.  210;  The  Independence,  2  Sabina,7Jur.  182;  The  Friends,  4  C. 

Curt.  350.  Rob.  145. 

♦  The  Graces,  2  W.  Rob.  294.         »  U.  8.  District  Court,  District 

And  see  The  White  Star,  1  L.  R.  of  South  Carolina,  Magrath,  J.  (noi 

Adm.  &  Eq.  68;  The  Banner,    14  reported). 


188  ADMIRALTY  LAW. 

The  French  law  of  salvage  has  little  analogy  with 
the  English  or  American. 

It  is  founded  on  "  Lois,  ordonnances,  declarations,  regle- 
ments,  arrets  du  Conseil  d'Etat,  et  autres  documents  legis- 
latifsr 

The  curious  who  desire  to  examine  it  I  refer  to 
"  Code  Maritime,  par  A.  Beaussant.  Paris,  1840." 
Tome  ii.  pp.  97-160,  547-549,  629,  639,  641,  642. 


LIENS  OTHER  THAN  SALVORS'.  189 


CHAPTER   III. 

LIENS    OTHER    THAN    SALVORS'. 

Section  L  —  CUSTOM-HOUSE  DUTIES. 

In  the  case  of  Tucker  et  al.  v.  The  Bark  Mary  C. 
Porter  and  Cargo/  it  was  held  that  duties,  in  the  order 
of  payment,  constitute  a  prior  debt ;  they  belong  to 
the  government ;  are  regarded  as  the  claim  made  by 
the  supreme  authority  of  a  nation. 

Held,  also,  that  duties  are  not  possessed  of  any  pecu- 
liarity distinct  from  other  liens,  making  it  necessary  for 
the  court  to  deduct  them,  and  consider  the  balance 
only  as  representing  the  property  saved. 

In  the  case  of  The  Jubilee,^  the  sale  was  ordered  free 
of  duties.  But  see  note  1  to  The  Waterloo,  1  Blatchf. 
&  How.  128. 

In  The  Concord,^  it  is  declared  that  "  goods  brought 
by  superior  force  into  the  United  States  are  not  deemed 
to  be  so  imported  in  the  sense  of  the  law,  as  necessa- 
rily to  attach  the  right  to  duties." 

Section  II.  —  ADMIRALTY  LIENS. 

The  maritime  lien  is  adopted  from  the  civil  law,  and 
imports  a  tacit  hypothecation  of  the  subject  of  that 
lien.* 

1  U.  8.  District  Court,  District         »  9  Cranch,  337. 
of  South  Carolina,  Magiath,  J.  (not         *  Vandewater  v.  Mills,  19  How. 

reported).  90. 

»  8  Hagg.  43. 


190  ADMIRALTY  LAW. 

It  is  a  jus  in  re  without  possession,  or  any  right  of 
possession,^  accompanies  property  into  the  hands  of  a 
bona  fide  holder,^  and  can  be  executed  or  divested  only 
by  a  proceeding  in  rem? 

Maritime  liens  are  stridi  juris,  and  not  to  be  extended 
by  implication  or  construction."* 

A  general  maritime  lien  can  only  exist  on  movable 
things  engaged  in  navigation,  or  things  the  subject  of 
commerce  on  the  high  seas,  or  on  navigable  waters.' 

The  liability  of  the  ship  and  responsibility  of  the 
owners  are  convertible  terms.^ 

It  attaches  on  the  order  of  the  owners,  made  ex- 
pressly on  the  credit  of  the  vessel.' 

All  maritime  liens  extend  equally  to  the  proceeds 
arising  from  the  sale  of  the  vessel,  and  are  to  be  satis- 
fied out  of  them  ;  ®  having  once  attached,  it  follows 
proceeds  into  the  hands  of  assignees.^ 

A  charter-party  gives  no  maritime  lien  on  the  vessel, 
unless  cargo  is  laden  under  it.^^ 

The  owner  of  a  vessel  injured  by  a  collision  has 
no  lien  or  claim  upon  the  insurance  received  by  her 
owner.^^ 

No  lien  exists  upon  a  vessel  for  the  premium  for  its 
insurance  by  the  owners  for  their  own  benefit.^^ 

The  master,  in  a  foreign  port,  may  bind  the  owners 

1  Vandewater  v.  Mills,  19  How.  '  The  Kalorama,  10  Wall.  217. 
82.  «  The  Siren,  7  Wall.  152. 

2  Vandewater  p.  Mills,  19  How.  »  Cutler  v.  Rae,  7  How.  729. 
82;  The  Feronia,  Law  Rep.  2  Adra.  "  The  Asa  Eldridge,  8  Fed.  Rep. 
&  E.  6.5.  720 ;~  Vandewater  v.  Mills,  19  How. 

«  Vandewaterr.Mills,19How.82.    82. 

<  Thomas  et  al.  v.  Osborn,  19  "  The  Peshtigo,  9  Cent.  Law 
How.  22.  Jour.  285. 

6  The  Rock  Island  Bridge,  6  Wall.  i*  6  Cent.  Law  Jour.  261  ;  The 
213.  John  T.  Moore,  7  Ins.  L.  J.  207. 

•  Freeman   v.    Buckingham,   18 
How.  189. 


LIENS  OTHER  THAN  SALVORS'.  191 

for  repairs  and  supplies,  or  pledge  the  credit  of  the 
vessel  for  advances/  though  he  be  owner  and  charterer 
pro  hoc  vice? 

Only  those  acts  of  the  master  performed  within  the 
scope  of  liis  authority  create  a  lien  on  the  vessel ; '  and 
all  contracts  within  the  scope  of  his  authority,  and 
those  only,  create  liens,*  in  any  other  than  the  home 
port  of  the  vessel.** 

All  liens  are  based  on  necessity,*  and  proof  of  neces- 
sity is  essential.' 

A  real  or  apparent  necessity  must  exist  at  the  time, 
not  only  for  the  supplies,  but  for  the  giving  of  credit 
to  the  vessel.^ 

Necessity  is  to  be  governed  by  the  circumstances  of 
each  case  ; '  the  fact  that  a  vessel  is  not  in  her  home 
port,  in  the  absence  of  other  circumstances,  makes  a 
case  of  apparent  necessity  ;  ^^  so,  where  the  master  ap- 
peared not  to  have  funds,  and  the  owners  appeared  not 
to  have  personal  credit." 

Eeasonable  diligence  is  required  of  merchants  to 
ascertain  if  repairs  and  supplies  are  necessary .^^ 

The  creditor  must  show  not  only  necessity,  or  an 
apparent  necessity,  for  the  supplies  or  advances,  but 
also  a  necessity  for  credit  to  the  vessel.^^ 

That  the  supplies  were  ordered  by  the  master  is  a 

*  Thomas  et  al.  v.  Osborn,  19  •  Thomas«/a?.».  Osborn,innow. 
How.  22. ,  22;  Pratt  v.  Reed,  19  How.  359. 

«  Andrews  r.  Wall,  8  How.  568.  »  The  Neversink,  5  Blatchf.  539. 

«  The   Waldo,   2  Ware    (Dav.),  "  The     Steamboat    Wasliington 

161.  Irvinpr,  2  Ben.  318. 

*  The  Camanche,  8  Wall.  494.  "  The  Grapeshot,  9  Wall.   129; 
»  Leiandr.  The  Medora,3  Woodb.  The  Lulu,  10  Wall.  192  ;  The  Kalo- 

&  M.  92.  rama,  10  Wall.  204. 

*  Thomas   et  al.  v.   Osborn,   19        "  The  Luln,  10  Wall.  201. 
How.  22.  i«  Pratt  r.   Reed.  19  How.   361; 

'  Pratt  r.  Reed,  19  How.  359;  Thomas  et  al.  v.  Osborn,  19  How. 
The  Grapeshot,  19  WaU.  129.  22;  The  Neversink,  5  Blatchf.  640. 


192  ADMIRALTY  LAW. 

presumption  that  they  were  properly  furnished  on  the 
credit  of  the  vessel/ 

It  is  sufficient  to  prove  that  the  necessaries  were  or- 
dered, and  were  in  their  nature  generally  necessary.^ 

Whatever  is  fit  and  proper,  and  whatever  a  prudent 
owner  would  have  ordered,  if  present,  is  within  the 
meaning  of  the  word  "  necessaries."^ 

In  case  of  extreme  necessity,  the  presence  of  the 
owner  will  not  affect  the  validity  of  the  lien.* 

Under  the  general  maritime  law,  the  implied  lien  at- 
taches only  on  foreign  vessels.^ 

The  actual  residence  of  the  owner  furnishes  the  test 
of  the  character  of  a  vessel  as  foreign  or  domestic.^ 

The  general  maritime  lien  does  not  attach  to  vessels 
engaged  in  internal  commerce,'^  but  only  to  vessels  in 
a  foreign  port;^  and  for  this  purpose  the  States  are 
deemed  foreign  to  each  other.^ 

The  maritime  lien  does  not  attach  on  a  contract 
made  on  land,  and  to  do  work  within  the  body  of  the 
county.-^*' 

Section  m.— LIEN  OF  MATERIAL-MEN. 

Material-men  have  a  threefold  security,  —  the  mas- 
ter, the  owners,  and  the  vessel.^^ 

1  The  Kalorama,  10  Wall.  204 ;  .  «  McAllister  v.  The  Sam  Kirk- 
The  Lulu,  10  Wall.  192.  man,  1  Bond,  369. 

2  Stroder  v.  The  Collier,  2  Pittsb.  '  Raymond  v.  The  Ellen  Stewart, 
Rep.  304.  5  McLean,  209. 

8  The  Grapeshot,  9  Wall.   129;  «  The  Stephen  Allen,  Blatchf.  & 

The  Gustavia,  Blatchf.  &  H.  191.  H.  178;  The  Aurora,  1  Wheat.  96; 

<  The  Grapeshot,  9  Wall.    129;  New  Jersey  Steam  Navigation  Com- 

The  Guy,  9  Wall.  758;  The  Lulu,  pany  r.  Merchants' Bank,  6  How.391. 

10  Wall.    192;   The  Kalorama,  10  »  The  Belfast,  7  Wall.  G24;  The 

Wall.  214.  Kalorama,  10  Wall.  212;  Levering 

6  Thomas  et  nl.  v.  Osborn,  19  How.  v.  Bank  of  Columbia,  1  Cranch  C.  C. 

22 ;  The  Stephen  Allen,  Blatchf.  &  152. 

H.  181;  Ramsay  v.  Allegre,  12  "  Phillips  v.  The  Thomas  Scat- 
Wheat.  611.  tergood,  Gilp.  7. 

11  The  Chusan,  2  Story,  468. 


LIENS  OTHER  THAN  SALVORS'.  193 

The  general  maritime  law  gives  a  lien  for  necessary 
repairs  and  supplies  furnished  to  a  foreign  vessel,^ 
unless  it  appears  that  the  lien  was  waived,'  or  unless 
it  can  be  inferred  that  the  master  has  money,  or  the 
owner  credit.' 

All  that  is  necessary  to  create  the  lien  is  that  the 
supplies  be  actually  furnished.* 

The  general  maritime  lien  does  not  attach  in  favor 
of  material-men  for  supplies  furnished  to  a  vessel  at 
her  home  port,^  even  if  the  vessel  be  engaged  in 
foreign  commerce.' 

Where  the  supplies  are  furnished  under  ciroum- 
stances  showing  an  intent  to  trust  to  the  personal 
credit  of  the  master,  owner,  or  other  persons  inter- 
ested, no  lien  arises.^ 

A  contract  for  necessary  repairs  to  a  vessel  in  a 
foreign  port  creates  a  lien  under  the  maritime  law,^ 
notwithstanding  the  owner  was  present,  if  done  on  the 
credit  of  the  vessel ;  ^  but  necessity  for  the  repairs  and 
for  credit  must  be  shown.^** 

The  master  is  bound  to  apply  moneys  in  his  hands 
towards  the  repairs  before  he  can  hypothecate." 

Necessity  for  credit  is  proved  where  such  circum- 
stances of  exigency  are  shown  as  would  induce  a  pru- 
dent owner  to  order  the  repairs." 

1  The    St    Jago    de    Cuba,    9  Zane  r.  The  President,  4  Wash.  CC. 

Wheat.  409.  453. 

«  The  Stephen  Allen,  Blatchf.  &         •  The    Aurora,    1    AVheat.    96 ; 

H.  181 ;  The  Grapeshot,  9  Wall.  129,  Phelps  v.  The  Camilla,  Taney,  400. 
distinguishing  The  Eledoua,  2  Ben.         *  The  Kalorama,  10  Wall.  204; 

81;  8.  c.  10  Blatchf.  512.  The  Cuater,  10  Wall.  215. 

•  The  Patapsco,  13  Wall.  329.  "  The  James  Guy,  5  Blatchf.  496; 

•  The  Carbacra,  3  Blatchf.  75.  8.  c.  1  Ben.  112;  the  Grapeshot,  9 
»  The  Mary  Bell,  1  Sawyer,  135.  Wall.  129. 

•  The  Edith,  11  Am.  Law  Reg.        "  The  Packet,  3  Mason.  255. 
214;  The  Circassian.  12  Am.  Law        "  The  Grapeshot,  9  Wall.    129; 
Reg.  294 ;  5  Am.  L.  T.  482.  The  Lulu,  10  WaU.  203. 

^  The  Sea  Flower,  1  Blatchf.  361 : 

13 


194  ADMIRALTY  LAW. 

Contracts  for  repairs  to  be  made  at  the  wharf  are 
maritime.^ 

The  supplies  must  appear  to  be  reasonable,  or  the 
money  advanced  for  them  to  have  been  wanting ;  and 
there  must  be  nothing  to  repel  the  ordinary  presump- 
tion that  the  master  acted  under  the  authority  of  the 
owners.'^ 

It  is  no  objection  that  the  owner  was  present  when 
the  supplies  were  furnished  in  a  foreign  port,^  or  that 
he  gave  directions  in  person,*  if  the  undertaking  was 
that  they  were  to  be  on  the  credit  of  the  vessel.^ 

But,  where  the  repairs  and  supplies  were  furnished  at 
the  request  of  the  owner,  they  were  presumed  to  be  fur- 
nished on  his  credit.* 

The  services  must  be  maritime  to  secure  the  lien.^ 

Under  the  common  law  a  ship-carpenter  or  a  ship- 
^  Wright  has  no  lien  for  repairs  after  the  vessel  has 
passed  out  of  his  possession,  on  a  contract  made  on 
land,  at  the  place  of  the  owner's  residence.^ 

Stevedores  have  a  lien  on  the  vessel  for  wages;'  but 
there  are  decisions  opposed  to  the  right  to  proceed  in 
reni  for  this  class  of  service. 

A  stevedore  has  no  maritime  lien  for  services  in  load- 
ing and  storing  cargo.^^  In  Flanagan  v.  Ship  Queen 
of  the  East,"  Judge  Pardee,  Circuit  Judge,  said  :  — 

1  Ex  parte  Easton,  95  U.  S.  75.  '^  Packard  v.  The  Louisa, 2  Woodb. 

2  The  Fortitude,  3  Sumn.  247.        &  M.  53;  Flaherty  ».  Doane,  1  Low. 
8  The  Kalorama,  10  Wall.  204;    150. 

The  Custer,  10  Wall.  215.  «  The  General  Smith,  4  Wheat. 

*  The  Grapeshot,   9  Wall.   129;  438;  The  Marion,^  Story,  68;  s.  c. 

The  Lulu,  10  Wall.  192;  The  Kalo-  3  Law  Rep.  250. 

ratna,   10  Wall.   208;   The  Guy,  9  »  McCarty  ».  Schooner  Senator, 

Wall.   578,  distinsfuishinjr  Thomas  1  Flipp.  609. 

€<aL  r.  Osborn,  19How.  22;Prattr.  "The   Amstrel,   Blatchf.   &  H. 

Reed,  19  How.  359.  217;  McDermott  v.  The  S.  Gowens, 

6  The  Kalorama,  10  Wall.  204.  1  Wall.  Jr.  370. 

«  The  Mary  Bell,  1  Sawyer,  139;  "  Eastern  District  of  Louisiana, 

Thomas  et  al.  v.  Osborn,  19  kow.  22.  May,  1882  (unreported). 


LIENS  OTHER  THAN  SALVORS'.  195 

This  court  has  held  that  an  unexecuted  contract  for  towage 
made  b}'  the  ship's  agent  in  port  gave  no  lien.  See  case  of 
The  Prince  Leopold,  reported  9  Federal  Reporter,  p.  333. 
In  that  case  there  was  no  performance,  nor  even  tender  of 
performance. 

In  the  case  now  under  consideration  there  was  part  per- 
formance, and,  as  is  shown  by  the  evidence,  the  towage  contract 
was  one  towage  from  sea  to  sea.  The  contract  must  be  treated 
as  a  whole,  and  as  there  was  performance,  the  contract  for 
towage  cannot  be  said  to  be  unexecuted.  The  libellants  have 
a  lien  for  the  full  amount  due  them. 

The  law  creates  no  lien  on  a  vessel  as  security  for 
the  performance  of  a  contract  to  transport  cargo,  until 
some  lawful  contract  of  affreightment  is  made  and  a 
cargo  shipped  under  it.^ 

The  maritime  privilege  or  lien  is  stridi  juris,  and  can- 
not be  extended  by  construction,  analogy,  or  inference.^ 

When  the  execution  of  a  charter-party  has  never  been 
begun,  damages  cannot  be  enforced  in  rem^ 

Analogy,  says  Pardessus,*  cannot  afford  a  decisive 
argument,  because  privileges  are  of  strict  rigM,  &c. 

These  principles  will  be  found  stated,  and  fully  vin- 
dicated by  authority,  in  the  cases  of  The  Young  Me- 
chanic *  and  The  Kiersage."     See  also  Hamer  v.  Bell.' 

It  is  not  material  whether  the  hypothecation  is  made 
directly  to  the  furnishers  of  repairs  and  supplies,  or  to 
one  who  advances  money  on  the  credit  of  ihz  vessel, 
to  pay  therefor  in  a  case  of  necessity.* 

*  The  Schooner  Freeman  v.  Buck-         *  Droit  Civil,  vol.  iii.  p.  397. 

ingham,  18  How.  188;  Vandewater         »  2  Curtis,  404. 

r.  Mills,  Claimant  Steamship  Yan-         •  2  Curtis,  421. 

kee  Blade,  18  How.  91 :  The  Monte,         '  22  Eng.  L.  &  Eq.  62. 

19  Fed.  Rep.  3.31  (1882).  »  The  Grapeshot,  9  Wall.    130; 

2  Vandewater  p.  Mills,  ut  tupra.  Tlie  Lulu,  10  Wall.  192;  The  Emily 

«  The    Tories    v.    The    Winged  B.    Souder,   3   Ben.    159;    8.    c.   8 

Races,  39  Hunt's  Merchants'  Mag.  Blatchf.   3-37;    The   Kalorama,    10 

458;  Vandewater  r.  Mills,  18  How.  Wall.  204;   The  Gustavia,  Blatchf. 

82.  &  H.  189. 


1 96  ADMIRALTY  LAW. 

The  lender  of  money,  in  a  foreign  port,  has  a  hen  for 
his  advances  made  for  the  payment  of  necessary  ex- 
penses,^ whenever  it  would  attach  for  the  necessaries 
themselves ;  ^  and  necessaries  include  money .^ 

Borrowed  money  is  to  be  placed  on  the  same  foot- 
ing as  the  purpose  for  which  it  is  borrowed.  Where 
the  latter  is  of  a  maritime  character,  and  has  a  lien  at- 
tached thereto,  whether  by  the  general  or  the  local  law, 
the  money  advanced  to  meet  it  has  an  equal  dignity.* 

If  the  lender  has  acted  in  good  faith,  and  without  any 
knowledge  or  suspicion  of  the  existence  of  funds  or 
personal  credit,  or  could  not,  upon  reasonable  inquiry, 
acquire  knowledge  thereof,  the  owner  is  bound,  notwith- 
standing they  existed  or  might  have  been  obtained.^ 

The  lien  for  advances  for  necessaries  takes  priority 
over  existing  mortgages  to  creditors  at  the  home  port.^ 

In  the  case  of  The  Athenian,^  Brown,  D.  J.,  said  :  — 

The  case  being  one  of  salvage,  libellants  are  entitled  to  be 
paid  first,  even  befoi-e  the  seamen  whose  wages  were  earned 
prior  to  these  services,  since  it  is  owing  to  their  exertions  that 
anything  remains  to  which  the  lien  of  the  seamen  can  attach. 
(The  Selina,  2  Notes  of  Cases,  18  ;  The  Mary  Ann,  9  Jur.  94; 
The  Panthea,  1  Asp.  Mar.  Law  Cases,  133.)  The  commis- 
sioners will  amend  the  report  by  classifying  the  claims  as 
follows :  1.  Salvage  services ;  2.  Seamen's  wages ;  3.  Claims 
of  tugs  and  material-men,  those  of  a  later  year  ranking  those 
of  a  former  ;  4.  Domestic  claims.  (See  Dalstrom  v.  Schooner 
E.   M.  Davidson,  1  Fed.  Rep.  259;  Marrion  Blacksmith   & 

1  Wainwright  v.  Crawford,  17  *  The  Guiding  Star,  9  Fed.  Rep. 
How.  477;  The  Emily  B.   Souder,    521. 

17   Wall.    666;   The   Neversink,   5         ^  Carrington  r.  Pratt,  18   How. 
Blatchf.  539.  63;   Thomas  et  aV.   v.    Osborn,   19 

2  The  Lulu,  10  Wall.  192.  How.  226. 

»  Insurance   Co.   v.   Baring,    20         «  The  Emily  B.  Souder,  17  Wall. 

Wall.  163;   Minten  v.  Maynard,  17  666. 

How.  477 ;  Tod  o.  The  Sultana,  19         '  The    Athenian,  3  Fed.   Rep. 

How.  362.  248. 


LIENS  OTHER  THAN  SALVORS'.  197 

Wrecking  Co.  v.  Steamboat  H.  C.  Yeager,  1  Fed.  Rep.  285  ; 
Mayo  V.  Clark,  1  Fed.  Rep.  735.) 

For  the  order  in  which  claims  are  paid,  see  also  The 
City  of  Tawas.^ 

Section  IV.— PRIORITY  OF  LIENS. 

Privileged  liens  are  matters  of  strict  right,  not  to  be 
extended  by  construction  to  cases  not  within  the  law 
which  confers  them.^ 

The  order  of  distribution  or  marshalling  the  proceeds 
is  settled  by  the  court,  according  to  the  legal  priority ; 
although  the  court  sometimes  refers  it  to  the  clerk  to 
report  the  claims  and  the  order  of  preferences.  In 
claims  of  the  same  rank,  the  one  first  commencing  his 
proceedings  is  preferred  in  the  distribution.  The  party 
first  seizing  holds  the  property  against  all  other  claims 
of  no  higher  character.  Debts  holding  a  higher  rank 
are  paid  in  full,  to  the  exclusion  of  those  of  lower  rank. 
To  the  report  of  the  clerk  exceptions  may  be  taken,  and 
the  court  decides  to  maintain,  amend,  reject,  or  re-refer 
the  report. 

The  seamen's  lien  for  wages  is  postponed  only  to 
that  of  libellants  in  a  case  of  collision  under  the  law 
of  retaliation.*  The  lien  for  salvage  takes  preference 
of  prior  maritime  liens. 

The  lien  for  supplies  should  be  preferred  to  the 
claim  of  forfeiture  to  the  government,  where  the  par- 
ties were  innocent  of  any  knowledge  of  the  illegality 
of  the  voyage.* 

In  the  case  of  The  Lillie  Laurie,"  it  was  held  that 

»  3  Fed.  Rep.  170.  •  The  Enterprise,  1  Low.  455. 

«  Vandewater  p.  Mills,  19  How.         ♦  The  St.  Jago  deCuba,  9Wheat. 

82;  Thomas  et  al.  v.  Osborn,  19  How.  409. 

22;   Pratt  c.    Reed,  19  How.   359;         •  The     Lillie     Laurie,     Circuit 

Tod  et  al.  v.  The  Sultana,  19  How.  Court,  Eastern   District  of    Texas, 

862.  Dec.  3, 1880,  Woods,  Circuit  Judge. 


198  ADMIRALTY  LAW. 

the  claim  for  salvage  was  entitled  to  priority  of  pay- 
ment over  the  claims  of  mortgages,  whether  the  same 
were  registered  before  or  after  the  origin  of  the  sal- 
vor's claim. 

In  the  case  of  The  Lillie  Laurie,^  it  was  held  that 
the  salvor's  claim  was  entitled  to  priority  of  payment 
over  debts  contracted  subsequent  to  the  date  of  his 
claim  for  supplies  furnished  in  the  home  port,  and 
which  are  made  a  lien  upon  the  vessel  only  by  State 
law. 

They  must  be  enforced  within  a  reasonable  time,  or 
they  will  not  avail  against  a  bona  fide  purchaser  without 
notice.^ 

There  must  be  something  more  than  mere  lapse  of 
time  :  it  must  be  unreasonable  neglect  and  delay,  oper- 
ating to  the  injury  of  third  persons.^ 

The  general  maritime  lien  may  be  waived  by  any 
act  inconsistent  with  its  continuance.* 

The  lien  is  not  extinguished  by  acceptance  of  a  note, 
unless  the  contract  was  to  accept  the  less  security  for 
the  greater.^ 

Section  v.  — LIENS  ON  DOMESTIC  VESSELS. 

Under  the  general  maritime  law  a  lien  on  a  domestic 
vessel  is  not  implied,^  no  lien  attaching  without  a  spe- 
cial statute.' 


1  United  States  Circuit  Court,  446;  The  Hunter,  1  VTare,  249; 
Eastern  District  of  Texas,  Woods,  De  Wolf  i'.  Rowland,  2  Paine,  364. 
Circuit  Judge,  Dec.  3,  1880.  «  The    Circassian,    11    Blatchf. 

2  The  General  Jackson,  1  472;  The  Belfast,  7  Wall.  624;  The 
Sprague,  554;  s.  c.  7  Law  Rep.  n.  s.  Edith,  5  Beu.  436 ;  s.  c.  11  Blatchf. 
324.  451. 

8  The  Prospect,  3  Blatchf.  526.  ^  Leon   v.   Galceran,    10    Wall. 

*  The  Ann  C.  Pratt,  1  Curt.  348.  192;  Edwards  v.   Elliot,   21   WaU. 

«  The    Augusta,   1   Dods.    283,  556;  The  Globe,  2  Blatchf.  427. 


LIENS  OTHER  THAN  SALVORS'.  199 

State  legislatures  have  power  to  create  liens  on  do- 
mestic vessels,  founded  on  maritime  contracts  j  ^  but 
they  cannot  provide  for  their  enforcement  in  rem^  or 
give  any  other  than  a  common-law  remedy ;  *  and, 
if  the  statute  should  provide  for  its  enforcement  in 
rem^  such  provision  would  be  unconstitutional  and 
void.* 

The  lien  of  a  pilot,  conferred  by  State  laws,  is  en- 
forceable in  admiralty.^ 

Although  a  State  statute  cannot  confer  jurisdiction 
on  a  federal  court,  it  may  yet  give  a  right,  to  which, 
other  things  allowing,  it  may  give  effect.® 

The  lien  for  towage  services,  given  by  State  statute, 
is  enforceable  in  admiralty."'' 

The  doctrine  on  this  point  is  changeable.  See  12 
Admiralty  Rule,  as  explained  in  The  St.  Lawrence.® 

Section  VL  — LIEN  OF  BUILDERS. 

A  contract  for  building  a  ship,  or  for  supplying  ma- 
terials for  her  construction,  is  not  a  maritime  contract 
creating  a  lien  under  the  general  maritime  law.* 

The  builder  has  a  common  lien,  or  right  of  posses- 
sion, to  finish  the  vessel,  and  earn  the  full  price  ;  '^^  but 

1  The  Belfast,  7  Wall.  624;  The  Wardens,    6    Wall.    34;  Ex  parte 

William  and  Emmeline,  Blatchf.  &  McNiel,  1.3  Wall.  241. 

H.  69.  •  Ex  parte    McNiel,    13    Wall. 

»  The  Belfast,  7  Wall.  644;  The  236. 

Globe,  2  Blatchf.  427.  '  The  Belfast.  7  Wall.  624;  Peo- 

»  The  Globe,  2  Blatchf.  427;  The  pie's  Ferry  Co.'  r.  Beers,  20  How. 

Kalorama,  10  Wall.  204;  The  Bel-  402. 

fast,  7  Wall.  625.  »  1  Black,  522. 

*  The  Edith,  10  Blatchf.  466;  11  •  People's  Ferry  Co.  r.  Beers,  20 

Am.  Law    Reg.  214;  I^eon  v.  Gal-  How.  400;   Roche  v.  Chapman,  22 

ceran,  11  Wall.  185;  The  Belfast,  7  How.  129;  The  Grapeshot,  9  Wall. 

Wall.  624.  130. 

»  Steamship   Co.    v.    Joliffe.    2  "  The  Kaloi-ama,  10  Wall.  211. 
Wall.  450;  Steamship  Co.  v.  Port 


200  ADMIRALTY  LAW. 

this  lien  is  lost  on  surrendering  possession/  or  by  a 
voluntary  release  of  possession.^ 

The  liens  under  the  common  law  do  not  attach  with- 
out possession.^ 

Contracts  for  building  and  furnishing  materials  for 
building  vessels  are  in  their  nature  maritime ;  and 
State  statutes  may  create  liens  which  will  be  enforce- 
able in  admiralty.* 

Section  VIL— LIEN  FOR  WHARFAGE. 

As  against  a  foreign  vessel  a  lien  attaches  for  wharf- 
age, which  is  enforceable  in  admiralty  in  rem,  or  by  a 
libel  in  personam  against  the  owner.^ 

Ancient  codes  usually  treat  such  contracts  as  mari- 
time, for  which  the  ship  or  vessel  is  liable.^  Such 
charges  constitute  a  lien ; '  they  are  the  subjects  of 
admiralty  jurisdiction.® 

Section  VIII.  — LIEN  FOR  WAGES. 

See  Seamen,  Chapter  V.,  Section  IV. 

Section  IX.  —  DIVESTMENT  OF  LIENS. 

When  the  ship  is  lawfully  sold,  the  purchaser  takes 
an  absolute  title  divested  of  all  liens,  and  the  liens  are 
transferred  to  the  proceeds.^ 

1  The   Alida,   Abb.    Adm.  171;  Blatchf.     466;     Calkin    v.    United 

Cunningham   v.    Hall,  1    Cliff.  48;  States,  .3  Ct.  01.  297;  The  Harrison, 

Meany  v.  Head,  1  Mass.  319.  2  Abb.  (U.  S.)  74. 

*  The  Kalorama,  10  Wall.  204,  «  Ex  parte  Easton,  95  U.  S.  68. 
denying  The  Zodiac,  1  Hagg.  Adm.  *  Maggie  Hammond,  9  Wall. 
320.  435;  Ex  parte  Easton,  95  U.  S.  76. 

8  The  Kaloram^,  10  Wall.  204;         '  Ex  parte  Easton,  95  U.  S.  76. 
Westerdell  v.  Dale,  7  Term   Rep.         »  Ibid. 
306.  »  The  Amelie,  6  Wall.  30;   Hill 

*  The  Kalorama.  10  Wall.  204;  v.  The  Golden  Gate,  6  Am.  Law 
Surp.  and  Rem.  of  The  Edith,   11  Reg.  173. 


LIENS  OTHER  THAN  SALVORS'.  201 

In  the  case  of  The  Trenton,  ^  under  the  heading 
"  Admiralty  Sales  —  Liens,"  it  is  said  that  by  the  laws 
of  most,  if  not  all,  civilized  nations  the  sale  of  a  vessel 
by  proceedings  in  rem,  in  a  court  of  competent  juris- 
diction, extinguishes  all  liens  upon  her,  and  vests  a 
clear  and  indefeasible  title  in  the  purchaser. 

This  is  not  the  law  of  England  and  America  alone. 
The  Commercial  Code  of  France  contains  similar  pro- 
visions regarding  the  judicial  sale  of  ships. 

Article  193 :  In  commenting  upon  this  article,  Du- 
four  observes  (2  Droit  Maritime,  47) :  "  Moreover,  the 
sale  upon  seizure  has  always  had  the  effect,  in  our  law, 
of  purging  tlie  incumbrances  with  which  the  property 
was  charged."  "  The  decree  clears  all  liens,"  said 
Loysel,  p.  53. 

Article  766  of  the  German  Mercantile  Code  expressly 
provides  that  the  lien  of  ships*  creditors  upon  the  ves- 
sel becomes  void  by  a  compulsory  sale  of  the  vessel  in 
a  home  port ;  the  purchase-money  takes  the  place  of 
the  ship,  as  regards  the  ship's  creditors.  The  ship's 
creditors  must  be  publicly  summoned  to  protect  their 
rights.  In  other  respects,  the  provisions  regulating  the 
proceedings  for  a  sale  are  reserved  to  the  laws  of  the 
various  countries. 

The  six  hundredth  article  of  the  Spanish  Code  is 
equally  explicit.  Similar  provisions  are  found  in  ar- 
ticle 1398  of  the  Portuguese,  article  193  of  the  Bel- 
gian, article  290  of  the  Italian,  article  840  of  the 
Chilian,  and   article  477  of  the  Brazilian  Code. 

The  Master.  —  The  ship  is,  by  the  general  maritime 
law,  held  responsible  for  the  torts  and  misconduct  of 
the  master  and  crew.* 

»  4  Fed.  Rep  657. 

s  United  States  p.  Brig  Malek  Adel,  2  How.  234. 


202  ADMIRALTY  LAW. 

The  master  may  maintain  an  action  in  the  admiralty 
in  personam,  but  not  in  rem,  for  his  wages.^ 

The  master  of  a  vessel  has  no  lien  in  admiralty  for 
his  wages.^ 

A  lien  for  lockage  will  not  arise  where  the  services 
were  rendered  to  the  vessel  in  her  home  port.^ 

A  claim  for  lockage  in  a  public  navigable  river  is 
cognizable  by  a  court  of  admiralty.* 

In  The  Young  Mechanic,^  Judge  Curtis  remarking, 
what  must  have  struck  every  one  whose  duties  require 
him  to  consider  it,  "  that  though  the  nature  of  admi- 
ralty liens  has  doubtless  long  been  understood,  it  does 
not  seem  to  have  been  described  with  fulness  or  pre- 
cision in  England  or  in  this  country."  He  then  enters 
upon  an  examination  of  it,  and  illustrates  it  in  a  man- 
ner well  worthy  of  attention.  He  distinguishes  it  from 
an  equitable  lien,  and  adopts  the  definition  by  Pothier 
of  an  hypothecation,  as  an  accurate  description  of  a 
maritime  lien  under  our  law,  "  the  right  which  a  cred- 
itor has  in  a  thing  of  another,  which  right  consists  in 
the  power  to  cause  that  thing  to  be  sold  in  order  to 
have  the  debt  paid  out  of  the  price." 

In  the  case  of  Mordecai  &  Co.  v.  The  Schooner  Mary 
Eddy  and  Owners,®  the  able  and  learned  judge  cites  the 
foregoing,  and  says  that  the  maritime  lien  in  general 
gives  no  right  to  the  creditor  to  take  possession ;  that 
is  executed  by  the  suit  in  rem. 

Upon  the  arrival  of  the  ship,  if  the  loan  is  not  re- 
paid within  the  time  prescribed,  proceedings  may  be 

^  Hammond  v.  Insurance  Co.,  4         *  Ibid. 
Mason,  196.  »  2  Curt.  C.  C.  404. 

2  The   Short  Cup,  6  Fed.  Rep.         •  U.    S.   Dist.    Court,    Dist.   of 

630.  South   Carolina,   Magrath,  J.   (not 

8  Monongahela  Nav.  Co.  ».  Tug  reported). 
Bob  ConneU,  1  Fed.  Rep.  218. 


LIENS  OTHER  THAN  SALVORS'.  203 

taken  in  the  court  of  admiralty,  and  the  ship  may  be 
arrested.^ 

A  shipping  broker  has  no  lien  on  a  vessel  in  admi- 
ralty for  services  in  procuring  a  charter-party.^ 

For  "  Some  Features  of  Maritime  Liens,"  see  an  essay 
by  Frank  Goodwin,  16  Am.  Law  Rev.  193  (March, 
1882) ;  and  see  note  by  Orlando  F.  Bump,  10  Fed.  Rep. 
489. 

A  maritime  lien  is  not  essential  to  give  the  courts 
of  the  United  States  admiralty  jurisdiction.^ 

Such  jurisdiction  attaches  on  breach  of  a  maritime 
contract* 

Under  the  doctrine  of  stare  decisis,  "  the  lien  of  a 
mortgage  on  a  vessel  duly  recorded  according  to  section 
4192  of  the  Revised  Statutes  is  inferior  to  all  strictly 
maritime  liens,  but  is  superior  to  any  subsequent  lien 
for  supplies  furnished  in  the  home  port,  given  by  State 
legislation."  ^ 

Where,  in  the  admiralty,  two  claims  are  made  upon 
the  fund  in  the  registry  of  the  court,  one  arising  from 
a  mortgage  given  at  a  foreign  port,  and  entered  upon 
the  vessel's  register,  for  outfit  and  supplies  for  the 
voyage,  and  the  other  upon  a  bill  of  lading  executed 
by  the  master  for  the  voyage,  for  specie  received  on 
board  and  never  delivered :  held,  that  the  latter  has 
priority  over  the  former  in  the  distribution  of  the 
fund.« 

^  Abbott's    Law    of    Merchant         *  Ibid. 
Ships  and  Seamen,  115  (12th  ed.,         '  The  Josephine   Spangler  (The 

London,  1881,  by  S.  Prentice,  Q.C.).  ^    Swet,   10  Fed.    Rep.  483,  fol- 

*  The  Thames,  Dec.  23,  1881,  lowed),  11  Fed.  Rep.  440,  by  Pardee, 
Fed.  Rep.   April  11,  1882;  16  Am.  Ct.  J. 

Law  Rev.  484.  •  Justi  Pon  and  Others  v.  Brig 

*  Maury  &  C!o.  ».  CuUiford  &  Arbustci,  Am.  Law  Reg.  vol.  vi. 
Clark,  10  Fed.  Rep.  388,  by  Par-  No.  8,  p.  511;  same  point,  Brown, 
dee,  C.  J.,  Dec.  23,  1881.  204. 


204  ADMIRALTY  LAW. 

The  mortgagee  of  a  vessel  sunk  by  a  collision  is  en- 
titled, for  the  protection  of  his  mortgage  interest,  to 
come  in  on  petition  as  co-libellant  in  a  libel  filed  by 
the  owners  against  the  offending  vessel.^ 

For  competing  liens,  see  further,  Maclachlan's  trea- 
tise on  the  Law  of  Merchant  Shipping,  pp.  651-657 
(2d  ed.,  London,  1875). 

By  the  general  maritime  law  there  attaches  upon  a 
wrong-doing  vessel  and  her  freight  a  maritime  lien  to 
the  full  extent  of  the  damage  done.^ 

The  maritime  lien  for  damage  by  collision  attaches 
to  the  ship  and  all  her  appurtenances,  to  the  freight 
which  has  actually  accrued  due,  and  to  subsequent 
accretions  in  the  value  of  the  ship  arising  from  repairs 
done  after  the  period  when  the  damage  was  occasioned, 
when  such  repairs  were  done  by  the  owner  at  his  own 
expense.^ 

A  libel  in  rem  cannot  be  maintained  for  services  in 
navigating  a  raft  of  logs.* 

Upon  general  principles  the  services  of  a  stevedore 
are  maritime  in  their  character,  and,  when  performed 
for  a  foreign  ship,  he  has  a  lien  thereon  for  the  value 
thereof.^ 

A  vessel  is  in  a  foreign  port,  in  the  sense  of  the 
maritime  law,  when  she  is  in  a  port  without  the  State 
where  she  belongs  and  her  owner  resides.* 

The  port  in  which  the  owner  of  a  vessel  resides  is 
her  home  port,  although  she  has  a  foreign  registry,  and 
sails  under  a  foreign  flag.' 

1  The  Grand  Republic,  10  Fed.  *  A  Raft  of  Cypress  Logs,  1  Flip- 
Rep.  398  (Jan.  28,  1882).  pin,  543. 

2  Maude  &  Pollock's  Law  of  Mer-  *  The  Canada,  7  Fed.  Rep.  119. 
chant  Shipping,  vol.  i.  p.  619  (4th         •  Ibid. 

ed.,  London,  1881).  »  The  Brig  E.     A.   Barnard,  3 
«  Kay's  Law  relating  to   Ship-  Fed.  Rep.  712  (June  4,  1880),  re- 
master and  Seamen,  vol.  ii.  p.  917  ported  by  Frank  P.  Prichard,  of  the 
(London,  1875).  Philadelphia  Bar. 


LIENS  OTHER  THAN  SALVORS'.  205 

The  services  of  a  stevedore  in  loading  a  vessel  in 
her  home  port  do  not  create  a  maritime  lien.* 

Contra,  a  stevedore  has  a  lien  upon  a  foreign  vessel 
for  his  services,  rendered  at  the  request  of  the  master 
in  a  case  in  which  the  vessel  is  to  stow  the  cargo.* 

The  services  of  a  Wcitchman  and  ship-keeper,  ren- 
dered while  the  vessel  is  in  port,  do  not  create  a  mari- 
time lien.' 

The  ship-keeper  of  a  domestic  vessel  cannot  sue  even 
in  personam  in  the  admiralty.* 

The  present  rules  and  the  decisions  of  the  Supreme 
Court  create  no  distinction  between  the  liens  on  a  do- 
mestic vessel,  given  by  the  local  law,  and  liens  under 
the  general  maritime  law.^ 

The  owner  of  a  cargo  has  no  lien  upon  the  vessel 
for  the  breach  of  a  contract  of  affreightment,  until  the 
cargo,  or  some  portion,  has  been  laden  on  board  or 
delivered  to  the  master.® 

In  order  that  a  ship-owner  may  retain  a  lien  on  the 
cargo  for  freight,  it  should  not  be  delivered  to  the  con- 
signee. This  rule  is  not  absolute  ;  but,  in  the  case  of 
an  understanding  between  the  parties  that  the  lien 
may  remain,  the  cargo  may  be  delivered.^ 

1  The   Brig  E.    A.   Barnard,  3  Fed.  Rep.  712  (June  4,  1880),  re- 

Fed.  Rep.  712  (.July  4,  1880),  re-  ported  by  Frank  P.  Prichard,  of  the 

ported  V)y  Frank  P.  Prichard,  of  the  Philadelphia  Bar. 
Philadelphia    Bar.     And    see   The         *  Gurney    v.    Crockett,    Abbott 

Arnstel,  Blatchf.    &  H.   215;    The  Adm.  490. 


Bark  Joseph  Cunard,  Olcott,  123 
Cox  »'.  Murray,  1  Abb.  Adm.  341 
The  8.  G.  Owens,  1  Wall.  Jr.  370 
Phillips  p.  The  Sattergood,  Gilpin.  3 


*  The  Canal  Boat  Dan  Brown,  9 
Ben.  309  (1878). 

•  Scott  &  Others  v.  The  Ira  Chaf- 
fee, 3  Fed.  Rep.  401. 


The  Bark  Ilex,  2  Woods,  229 ;  The         '  Wilcox  v.  Five  Hundred  Tons 

S.  R.  Dunlap,  1  Ix)w.  350.  of  Coal,  U.  S.  Circuit  Court,  N.  D. 

'  The  George  T.  Kemp,  2  Low.  Illinois,  per  Drummond,  J.,  Chicago 

477;  The  Schooner  Senator,  3  N.  Y.  I^gal  News,  Aug.  19,  1882,  p.  402; 

Weekly  Dig.  430.  Bags  of  Linseed,  1  Black,  109. 

*  The   Brig  £.   A.   Barnard,   8 


206  ADMIRALTY  LAW. 


CHAPTER     IV. 
COLLISION. 

Section  L  —  DEFINITION. 

Collision,  in  the  nautical  acceptation  of  that  term, 
imports  the  impinging  of  vessels  together  while  in  the 
act  of  being  navigated  ;  but  the  term  applies  equally 
to  cases  where  a  vessel  is  run  foul  of  when  entirely 
stationary,  or  when  brought  in  contact  by  swinging  at 
her  anchor.^ 

Two  things  must  concur  for  an  act  of  collision :  it 
must  be  a  collision  by  the  act  of  one  party,  and  no 
want  of  ordinary  care  to  avoid  it  on  the  part  of  the 
other.^ 

Section  IL  — RIGHTS.    BY  WHAT  LAW  REGULATED. 

The  rights  of  the  parties  in  an  action  for  a  collision 
depend  on  the  law  of  the  place  where  the  collision 
occurred  ;  ®  but  if  a  collision  takes  place  on  the  high 
seas,  between  vessels  of  different  nationalities,  the 
rules  of  the  maritime  law  are  to  determine  which  was 
in  fault.* 

1  TheMoxey,  Abb.  Adm.  73.         The  Chancellor,  4  Ben.   153;   The 

2  The  Pilot,  1  Biss.  164;  Sills  v.  Saxonia.  Lush.  410;  The  Dumfries, 
Brown,  9  Car.  &  P.  601.  Swa.  63;  The  Zollverein,  Swa.  96; 

8  Smith  V.  Condry,  1  How.  28;  Williams  v.  Gulch,  14  Moore  P.  C. 

The  Peerless,  Lush.  30;  The  China,  202,  explaining  The  Cleadon,  Lush. 

7  Wall.  64;  The  Eagle,  8  Wall.  21 ;  158;  4  L.  T.  n.  8.  157.     But  see  The 

The  Scotia,  7  Blatchf.  321.  New  Ed   v.  Gustow,  Holt  Rule  of 

*  The  Belle,   1   Ben.   320;   The  the  Road,  28;   The  Fyenoord,  Swa. 

Scotia,  14  Wall.  170 ;  7  Blatchf.  326 ;  374. 


COLLISION.  207 

Sailing  rules  and  regulations,  prescribed  by  law, 
furnish  paramount  rules  of  decision  whenever  they 
are  applicable  ;  *  but  local  usages  are  but  little  re- 
garded,* as  vessels  are  not  bound  by  the  regulations 
of  a  foreign  country.* 

The  principles  which  will  be  discovered  to  be  the 
foundation  of  the  decisions  in  connection  with  colli- 
sions between  vessels  are  identical  with  those  which 
have  ruled  the  decisions  in  the  case  of  land  carriage.* 

Section  IH. —PRECAUTION  TO  AVOID  COLLISION. 

A  vessel  about  to  get  under  way  should  notify  a 
vessel  at  anchor,  so  near  to  her  that  there  is  danger 
of  collision,  of  her  intention  to  get  under  way.^ 

A  vessel  entering  a  harbor  is  bound  to  exercise  great 
care  and  diligence.* 

The  safeguards  against  danger,  in  order  to  be  effect- 
ual, must  be  seasonably  employed.' 

It  is  enough  that  the  precautions  are  reasonable 
under  the  circumstances ;  the  highest  degree  of  cau- 
tion is  not  needed.® 

Where  practicable,  a  vessel  is  bound  to  take  the 

1  The  City  of  Washington,  92  •  O'Neil  v.    Sears,    2  Sprague, 

U.  S.  3L  52. 

«  Wheeler  v.  The  Eastern  State,  •  Culbertson  r.  Shaw,  18  How. 

2  Curt.  141;  The  Clement,  2  Curt.  584;  Ward  r.  The  Donsman,  6  Mo 

863;  The  Lion,  1  Sprague,  40;  The  Lean,  2.*U. 

E.   C.   Scraiiton,  3  Blatchf.   50;  4  '  xhe  W.  H.  Clark,  5  Biss.  .303; 

Ben.  127;  The  Merrimac,  14  Wall.  The  Johnson,  9  Wall.  146;  TheCar- 

203;  The  Carolus,  2  Curt.  69;  The  roll,  8  Wall.  .302;  The  Vanderbilt,  6 

Topaze.  Holt  Rule  of  the  Road,  165;  Wall.  225;  Killam  r.   The  Eri,  3 

The  Western  Metropolis,  7  Blatchf.  Cliff.  456. 

214.  «  The  Colorado,  1  Brown  Adm. 

•  Donr.  Lipman,  5Clark&F.  1;  403;  The  Grace  Girdler,  7  Wall. 
The  Vernon,  1  W.  Rob.  319.  196;  Union  S.  S.  Co.  r.  New  York, 

*  LawofCarriers.byJ.n.  Balfour  &c.  Co.,  24  How.  307;  The  Wash- 
Browne,  I^ondon,  1873,  p.  459.  See  ington,  14  How.  532;  The  Morning 
Edwardson Bailment3,§§ M.Melseq.  Light,  2  Wall.  550. 


208  ADMIRALTY  LAW. 

necessary  precautions  for  avoiding  a  collision,  although 
the  other  vessel  is  acting  wrongfully  in  not  giving  way 
in  time.^ 

Every  precaution  must  be  taken  by  the  injured  vessel, 
after  a  collision,  to  make  the  loss  as  light  as  possible.^ 


Section  IV.  — DUTY  AND  OBLIGATIONS   OF  STEAMERS. 

A  steamer  going  on  her  customary  route  should  keep 
in  her  usual  track.^ 

Neither  rain,  darkness,  nor  the  absence  of  lights  on 
the  sail-vessel,  nor  the  fact  that  the  steamer  was  well 
manned,  furnished,  and  conducted  with  care,  will  ex- 
cuse her  if  out  of  her  usual  track.* 

In  thoroughfares,  when  the  darkness  is  such  that  it 
is  impossible  or  difficult  to  see  approaching  vessels,  it 
is  their  duty  "  to  slow,"  or  even  stop,  or  back  their 
engines,  according  to  circumstances  ;  and  the  principle 
of  the  rule  may  be  applied,  in  a  qualified  sense,  to  sail- 
vessels.^ 

Two  steamers  approaching  should  both  stop  their 
engines,  in  view  of  danger,  till  the  course  and  direction 
of  each  is  clearly  ascertained.® 

1  St.  John  V.  Paine,  10  How.  557 ;  ter    ».    The   Miranda,   6  McLean, 

Haney  v.  Baltimore  S.  P.  Co.,  23  227. 

How.   287;   The   Ann    Caroline,   2         «  The  Bay  State,  3  Blatchf.  48; 

Wall.  538;  Foster  v.  The  Miranda,  The  Vanderbilt,  6  Wall.  225;  N.  Y. 

Newb.  227;    6  McLean,  221;    The  &  V.  S.  S.  Co.  v.  Calderwood,  19 

Santa  Claus,  Olcott,  428 ;  The  Van-  How.  241. 

derbilt.  Abb.  Adm.  361;   Allen  v.         *  Pope  v.  The  R.  B.  Forbes,  1 

Mackay,  1  Sprague,  219;  The  Hope,  Cliff.  343;  Williams  v.  Hill,  19  How. 

1  W.  Rob.  154 ;  The  Friends,  1  W.  246. 

Rob.  478;  The  Shannon,   2  Ilagg.         ^  The  Morning  Light,  2  Wall. 

Adm.  173;  The  Lady  Anne,  1  Eng.  559;    The   Rose,  7  Jar.  381;    The 

L.  &  Eq.  670.  Virgil,  2  W.  Rob,  201 ;  7  Jur.  1174; 


a  The  S.  F.  Gale,  Newb.  232 
Newton  v.  Stebbins,  10  How.  586 
St.  John   t'.   Paine,  10  How.  557 


The  Leo,  11  Blatchf.  225. 

•  Waring  v.  Clarke,  5  How.  502; 
The  James  Watt,  2  W.  Rob.  270 ; 


The  Cynosure,  1  Sprague,  88;  Fos-    8  Jur.  320. 


COLLISION.  209 

Where  one  steamer  is  going  with  the  tide,  and  an- 
other against  it,  and  one  should  be  required  to  stop, 
it  is  the  duty  of  the  one  going  against  the  tide  to 
do  so.* 

The  obligations  and  duties  of  steam-vessels  are  rigidly 
enforced.'' 

Section  V.  —  STEAMERS  TO  AVOID  SAII^VESSELS. 

The  duty  to  avoid  a  collision  is  primarily  on  the 
steamer.' 

Services  rendered  by  a  steamer  to  a  sailing-vessel 
run  down  by  fault  of  the  steamer  do  not  entitle  the 
steamer  to  claim  salvage.* 

A  steamer  is  bound  to  use,  effectively  and  promptly, 
the  extraordinary  means  she  possesses,  to  avoid  collision 
with  a  sailing-vessel,  and  is  liable  for  the  consequences  of 
a  collision  occurring  through  her  neglect  to  use  them.^ 

A  steamer  approaching  a  sail-vesvsel  is  required  to 
exercise  necessary  precautions  to  avoid  collision.^ 

1  The  Galatea,  92  U.  S.  439.  How.  Pr.  527;  Carpenter  r.   The 

«  The  Atlantic,  Newb.  154;  Ward  Island  City,  2  Int.  Rev.  Rec.  109 

V.    The  Ogdensburgh,   5   McLean,  The  Sampson,  3  Am.  L.  Reg.  337 

638;  .The  Leopard,  2  Ware  (Dav.),  Twibell  v.  The  Keystone,  9  N.  Y 

193;    The   Europa.    Br.    &   L.   87;  Leg.   Obs.    289;  The  Jamaica   St 

2  Eng.  L.  &  Eq.  557;  The  Genessee  Ferryboat  Collision,  11  N.  Y.  Leg, 

Chief,  12  How.  443;  The   Rose,  2  Obs.* 242;  The  lola,  11  N.  Y.  Leg, 

W.  Rob.  1;  7Jur.  381;  The  Virgil,  Obs.  263;   The   Empire   State,   12 

2  W.  Rob.  201 ;  7  Jur.  1174.  N.  Y.  Leg.  Obs.  2.")9;  The  Wenona, 

•  Haney  w.  The  Louisiana,  Taney,  4  Ben.  219;  The  Nichols,  7  Wall. 
602;  The  Kentucky,  4  Blatchf.  325;  6.56;  The  Carroll,  8  Wall.  302;  The 
The  Fannie,  11  Wall.  238  ;  The  Oregon  v.  Rocca,  18  How.  .570. 
Fashion  r.  Wards,  6  Mcl..ean,  176;  •  New  York,  &c.  Co.  c.  Rumball, 
St.  John  r.  Paine,  10  How.  557;  21  How.  384:  St.  John  f.  Paine,  10 
Baker  v.  The  City  of  New  York,  1  How.  557;  The  Oregon  v.  Rocca, 
Cliff.  75;  The  Pacific,  Newb.  31.  18  How.  570;  The  New  Jersey,  01- 

*  The  Samuel  H.  Crawford,  6  cott,  419;  Ix)wry  v.  The  Portland, 
Fed.  Rep.  906  (1881).  1   Law  Rep.  313;  The  Hope,  1  W. 

»  The  Bay  State,  11  N.  Y.  Leg.    Rob.  157.  , 

Obs.  297;  Butterfield  o.  Boyd,  18 

14 


210  ADMIRALTY  LAW. 

So,  a  steamer  is  bound  to  avoid  a  vessel  at  anchor ;  ^ 
nothing  will  excuse  her  for  a  collision  with  an  anchored 
vessel  or  one  sailing  in  the  thoroughfare  out  of  the 
usual  track  of  the  steamer.^ 

Section  VL  — RATE   OF  SPEED  OF   STEAMERS. 

They  are  required  to  go  at  a  moderate  rate  of  speed ;  ^ 
such  a  rate  as  will  place  their  headway  under  such  easy 
and  ready  command  that  they  can  be  stopped  within 
such  distance  as  other  vessels  can  be  seen  from  them.* 

It  is  no  excuse  for  excessive  speed  that  the  steamer 
could  not  otherwise  fulfil  a  mail  contract.^ 

Section  VIL— OBLIGATIONS   TO   SLACKEN  SPEED. 

It  is  the  duty  of  a  steamer  to  proceed  at  such  a  rate  of 
speed  as  will  enable  her,  after  discovering  a  vessel  meet- 
ing her,  to  stop  and  reverse  her  engines  in  sufficient 
time  to  prevent  a  collision.^ 

*  Waring  r.  Clarke,  5  How.  441 ;  How.   108;    The  James   Adger,   3 
The  Girolamo,  3  Hagg.  Adm.  169;  Blatchf.  515;  The  Northern  Indiana, 
The  Eolides,  3   Hagg.   Adm.  367;  3  Blatchf.  92;  The  Rose,  2  W.  Rob. 
The  Baron  Holberg,  3  Hagg.  Adm.  1 ;  7  Jur.  381 ;  The  Vivid,  Swa.  88. 
244.  •  The  Free  State,  91  U.  S.  200; 

2  Amoskeag  M.  Co.  p.  The  John  The  D.   S.   Gregory,   2  Ben.    166; 

Adams,  1  Cliff.  413;  New  York,  &c.  6   Blatchf.   166;   The   Louisiana,  2 

Co.  V.  Calderwood,  19  How.  241.  Ben.  374;  The  City  of  Paris,  9  Wall. 

8  The   Blackstone,   1   Low.  488;  638;  The   Great  Eastern,  11  L.  T. 

The    St.  Louis  v.  The  A.  Rossiter,  n.  8.  5;  Ward  v.  The  Ogdensburgh, 

Newb.  225;   The  Robert  and  Ann,  5  McLean,  638;   The  Iluntsville,  8 

Holt  R.  R.  55.  Blatchf.  228;  The  Favorita,  4  Ben. 

*  The  Colorado,  1  Brown  Adm.  134;  8  Blatchf.  530;  The  Leopard, 
406;  The  Louisiana,  2  Ben.  371;  2  Ware  (Dav.),  193;  The  Genessee 
The  Western  Metropolis,  7  Blatchf.  Chief,  12  How.  443;  The  Syracuse, 
214;2Ben.  399;  The  D.S.Gregory,  9  Wall.  676;  The  Blackstone,  1 
2  Ben.  166;  6  Blatchf.  166;  Mc-  Low.  488;  The  Batavia,  9  Moore  P. 
Cready  v.  Goldsmith,  18  How.  89;  C.  C.  287;  The  City  of  Paris,  Holt 
Abb.  Adm.  235;  The  Leo,  11  R.  R.  15;  The  Hansa,  5  Ben.  501; 
Blatchf.  225.  The    Despatch,     Swa.     138;    The 

6  Rogers  v.  The  St.  Charles,  19    Europa,  2  Eng.  L.  &  Eq.  557 ;  The 


COLLISION. 


211 


Where  a  steam- vessel,  proceeding  in  the  dark,  hears 
a  hail  from  a  source  which  she  cannot  or  does  not  see, 
it  is  her  duty  instantly  to  stop  and  reverse  her  engine, 
not  simply  to  slow.^ 

The  duty  to  check  speed  and  change  direction  de- 
volves upon  the  steamer  alone,  and  the  sail-vessel  has 
a  right  to  hold  her  course.^ 

Some  affirmative  evidence  of  danger  must  be  present 
to  impose  the  duty  of  decreasing  speed.* 


Section  VIIL  —  FOG-SIGNALS. 

By  day  there  must  be  fog  enough  to  shut  out  the 
view  of  the  sails  or  the  hull,  or  by  night  the  lights, 
within  the  range  of  the  horn,  whistle,  or  bell.* 

If  lights  could  be  plainly  and  easily  made  out  at  a 
mile,  it  would  not  amount  to  a  fog,  in  the  sense  of  the 
law.* 


Lady  of  the  Lake.  Holt  R.  R.  24, 
202;  The  Ilose,  2  W.  llob.  1;  The 
Saxonia,  Lush.  410;  The  Virgil,  2 
W.  Rob.  201 ;  The  Karl,  Holt  R.  R. 
203;  The  Fanny  Buck,  Holt  R.  R. 
193;  The  Sylph,  2  Spinks,  55;  The 
James  Watt,  2  W.  Rob.  270;  The 
Ligo,  2  Hagff.  Adm.  3.")fl;  The  Bol- 
deraa.  Holt  R.  R,  205;  Nelson  r. 
Leland,  22  IIow.  48;  The  Hermann, 
4  Blatchf.  441;  The  Northern  In- 
diana, 3  Blatchf.  02;  10  Law  Rep. 
433;  The  Birkenhead,  3  W.  Rob. 
75  ;  The  Empire  State,  2  Diss. 
210. 

1  The  Hypodame,  6  Wall.  225, 
distinguishing  The  Osprey,  2  Wall, 
Jr.  268.  And  see  The  Perth,  3 
Hagg.  Adm.  414;  The  Frank  Mof- 
fat, 11  Ch.  L.  N.  115. 

•  The  Northern  Indiana,  8 
Blatchf.  9f);  The  Genessee  Chief, 
12  How.   443;  The  Perth,  3  Hagg. 


Adm.  414;  The  Iron  Duke,  2  W. 
Rob.  377;  The  Rose,  2  W.  Rob.  1; 
St.  John  V.  Paine,  10  How.  557. 

•  The  Free  State,  1  Brown  Adm. 
266;  The  New  York,  18  How.  223; 
McCready  v.  Goldsmith,  18  How. 
89;  The  St.  Charles,  19  How.  108; 
The  rx>ui.siana,  21  How.  1;  2  Ben. 
377;  Nelson  p.  Leland,  22  IIow.  48; 
The  City  of  Paris,  9  Wall.  634;  The 
Bay  State,  Abb.  Adm.  235;  The 
Electra,  1  Ben.  282;  The  Northern 
Indiana,  3  Blatchf.  92;  The  A.  Ros- 
si ter,  Newb.  225;  The  Buffalo, 
Newb.  115;  The  James  WaU,  2  W. 
Rob.  271;  The  Birkenhead,  2  W. 
R<.b.  75;  The  Cognac,  Holt  Ru.  of 
Rd.  143;  The  Concordia,  Holt,  Ru. 
of  Rd.  142;  The  Sunnyside,  6  Am. 
L.  T.  277. 

*  The  Monticello  v.  MoUison,  17 
How.  152;  1  Low.  164. 

»  Ibid. 


212  ADMIRALTY  LAW. 

Section  IX.  —  SIGNAL-LIGHTS. 

The  exhibition  of  a  light  is  a  precaution  so  imperi- 
ously demanded  by  prudence,  that  the  neglect  is  con- 
sidered as  negligence  jper  se} 

The  neglect  may  amount  to  contributory  negligence, 
which  will  prevent  the  guilty  vessel  from  recovering 
damages.^ 

The  rules  of  navigation  as  to  the  exhibition  of  lights 
are  obligatory  upon  the  commercial  states  of  the  world 
who  have  accepted  them,  and  are  regarded  as  the  laws 
of  the  sea  and  subject  to  judicial  notice.^ 

The  substance  of  the  regulation  is  that  the  lights 
shall  be  fairly  visible  ;  there  is  no  order  that  they  shall 
be  fixed  in  any  peculiar  manner,  or  in  any  particular 
part  of  the  ship.* 

Section  X.  — LIGHTS  REQUIRED  BY  STATUTE. 

By  the  act  of  Congress  of  1 838,  it  is  made  the  duty 
of  the  master  and  owner  of  every  steamboat  to  carry 
one  or  more  signal-lights  that  may  be  seen  by  other 
boats  navigating  the  same  waters,  under  a  penalty  of 
$200/  and  by  the  act  of  1849  said  lights  were  to  be 

1  Simpson   v.   Hand,   6  Whart.  Pratt  on  Lights,  58;  The  Guhiare, 

311 ;  The  Oratava,  5  Men.  Law  Mag.  Pratt  on  Lights,  59 ;  The  Mangei-ton, 

45;  The  Columbine,  2  W.  Rob.  27;  Swa.  120;  The  Alma,  Holt  R.  R. 

The  Blue  Wing  v.  Buckner,  12  B.  250. 

Mon.  246 ;  Ward  v.  Armstrong,  14         ^  Green  v.  The  Adelaide,  Taney, 

111.  283 ;  Taylor  v.  Harwood,  Taney,  575. 

437;  Cohen  v.  The  Mary  T.  Wilder,         «  The  Scotia,  14  Wall.  171 ;  The 

Taney,  567.  Vessels  held  in  fault  for  Continental,  14  Wall.  315. 
not  exhibiting  lights  in  time :   The         *  The    City  of  Carlisle,    Br.    & 

Gloria  Deo,  Pratt  on   Lights,   35;  L.  363. 

The  Rob  Roy,  3  W.  Rob.  191 ;  The         *  Waring  r.  Clarke,  5  How.  441; 

Imperatriz,   Pratt    on    Lights,   35;  The  Santa  Claus,  Olcott,  428 ;  Bul- 

The  Clarence,  Pratt  on  Lights,  36;  lock  v.   The   Lamar,  8  Law  Rep. 

The  Juliana,  Swa.  20 ;  The  is^eptune,  275. 


COLLISION.  213 

furnished  with  reflectors,  &c.,  complete,  and  of  a  size 
to  insure  a  good  and  sufficient  light.^ 

By  the  act  of  Congress  of  1864,  the  green  and  red 
side-lights  shall  be  fitted  with  inboard  screens,  project- 
ing at  least  three  feet  forward  from  the  light,  so  as  to 
prevent  these  lights  from  being  seen  across  the  bow.^ 

All  steamers  when  imder  way  must  carry  a  green  light 
upon  the  starboard  side,  and  a  red  light  on  the  port  side.' 

And  see  U.  S.  Rev.  Stat.  pp.  821,  822,  §  4233;  p. 
1045,  §  5358 ;  and  for  lights  and  buoys,  see  U.  S.  Rev. 
Stat.  pp.  913-916,  §§  4653-4680. 

Where  the  night  was  moonlight,  though  occasionally 
obscured,  there  was  no  obligation  imposed  on  a  vessel 
to  exhibit  a  light.* 

Section  XL— EXHIBITING  FALSE  LIGHTS. 

The  exhibition  by  a  vessel  of  a  prohibited  light  does 
not  absolve  the  other  vessel  from  the  observance  of  that 
degree  of  caution,  care,  and  skill  which  the  exigencies 
of  the  case  require.* 

Section  XIL  — FAULTS  BY  OMISSION  TO  EXHIBIT  LIGHTS. 

A  vessel  failing  to  exhibit  her  lights  will  be  held  in 
fault  in  a  case  of  collision.* 

*  Foster  V.  The  Miranda,  Newb.  1  Biss.  481.  And  see  Chamber- 
227;  6  McLean,  221;  Chamberlain  lain  r.  Ward,  21  How.  539;  Swift 
r.  Ward,  21  How.  539,  572.  v.    Brownell,  1    Holmes,  467;   The 

«  The   City  of  Paris,  Holt  R.  R.  S.  F.  Gale  and  The  Miranda,  Newb. 

15;  The  Lady  of  the   Lake,  Holt  234;  The  Hope,  1  W.  Rob.  154. 
R.  R.  38.  «  The  Parkersburgh,  5   Blatchf. 

»  The  Ottawa,  3  Wall.  268.  247;   Bullock  r.  The  Lamar,  8  Law 

*  The  Louisiana  v.  Fisher,  21  Rep.  275;  1  West.  L.  J.  444;  The 
How.  1;  Baker  ».  The  City  of  New  Frank  MofTatt,  11  Ch.  L.  N.  114; 
York,  1  Clifif.  76;  The  Tillie,  13  Larco  v.  The  Martha  Elizabeth,  1 
Blatchf.  514.  Sawyer,   120;   The  Union,   7   Ben. 

»  The  Scotia,  7  Blatchf.  328;  The  296;   The  City  of  Washington,   6 

Continental,   14  Wall.  315;  Green-  Ben.   138;  11   Blatchf.  487;  U.   & 

ing  r.   The  Gray  Eagle,   17  Am.  Rev.  Stat.  §  4234. 
Law  Reg.  n.  8.  226;  9  Wall.  605; 


214  ADMIRALTY  LAW. 


Section  XIIL— LIGHTS  FOR  VESSELS  AT  ANCHOR. 

A  vessel  at  anchor  in  a  harbor  or  in  a  navigable 
river  must  show  a  light.^ 

Where  a  boat  is  anchored  in  the  path  of  commerce, 
a  light  is  indispensable,  but  not  when  fast  to  the  shore 
at  a  place  set  apart  for  such  boat  to  lie.^ 

Pilot-boats  at  anchor  in  roadsteads  and  fairways  are 
required  to  exhibit  a  white  light  in  a  globular  lantern 
of  eight  inches  in  diameter.^ 

Where  a  vessel  at  anchor  at  a  proper  place  exhibited 
the  legal  lights,  the  burden  is  on  the  colliding  vessel 
to  show  that  she  was  without  fault,  or  that  the  disaster 
was  the  result  of  inevitable  accident.* 

The  rule  as  to  vessels  at  anchor  exhibiting  lights  is 
imperative,  whether  the  night  be  light  or  dark.^ 

Section  XIV.  — VESSELS  AT  ANCHOR. 

A  vessel  at  anchor  in  a  gale  is  bound  to  adopt  the 
proper  means  to  avoid  a  collision ;  and  if  she  does  not, 
she  is  a  participant  in  the  wrong,  and  must  share  in  the 
loss.^ 

1  The  Indiana,  Abb.  Adm.  330;  *  The  Clara  and  Clarita,  5  Ben. 
Hain  v.  The  North  America,  2  N.  381 ;  The  John  Adams,  1  Cliff.  404; 
Y.  Leg.  Obs.  67;  Rogers  v.  The  St.  Sterling  v.  The  Jennie  Cushman,  3 
Charles,  19  How.  108.  And  see  Cliff.  636;  The  Scioto,  2  Ware 
Corsleyw.  White,  21  Pick.  254;  New  (Dav.),  3.59;  Strout  v.  Foster,  1 
Haven  S.  Co.  v.  Vanderbilt,  16  How.  89;  The  Batavier,  2  W.  Rob. 
Conn.  420.  407.     And  see  Hall  v.  Little,  6  Re- 

2  The  Bridgeport,  14  Wall.  119;  porter,  577. 

Culbertson  v.  The  Southern   Belle,         s  The   Harriet,  1  W.  Rob.   182. 

18   How.   584 ;   lire  v.  Coff man,  19  She  is  in  fault  for  not  having  lights 

How.  56;   Willard  v.    Saulsbury,  1  or  lookout.     The  Clara,  13  Blatchf. 

Low.  97 ;  The  Granite  State,  3  Wall.  509;  The  Sapphire,   11  Wall.  170; 

310;  Rogers  v.  The  St.  Charles,  19  The  Indiana,  Abb.   Adm.  330;  The 

How.  108;   The  James  Gray  p.  The  Mary  T.  Wilder,   Taney,  567;   The 

John  Frazer,  21  How.  184.  Lydia,  4  Ben.  523. 

8  The  Wanata,  95  U.   S.  600;         «  The  Sapphire,  11  Wall.  164. 
4  Ben.  310. 


COLLISION.  215 

Contributing  to  a  collision  by  being  anchored  in  an 
improper  place,  deemed  a  fault.^ 

Section  XV.  —  LOOKOUT. 

A  vessel  not  having  a  lookout  properly  stationed 
independent  of  the  helmsman,  will  be  liable  for  in- 
juries sustained  in  a  collision  with  other  vessels  which 
were  managed  with  ordinary  care  and  skill,^  unless  the 
collision  was  not  owing  to  the  absence  of  the  lookout ;  * 
but  the  omission  is  prima  facie  evidence  of  fault.* 

The  precaution  of  a  lookout  is  not  indispensable, 
where,  from  the  circumstances,  a  lookout  could  not  pos- 
sibly be  of  service.^ 

A  vessel  anchored  in  a  river  having  a  rapid  current 
should  keep  a  watch.' 

A  steamer  is  bound  to  exercise  the  greatest  care  in 

»  Strout  r.  Foster,  1  How.  89;  lisle,  11  Law  T  n.  s.  33;  The  Prea- 
The  Scioto,  2  Ware  (Dav.),  359;  to,  Holt  R.  R.  103;  The  Maria, 
The  Marcia  Tribou,  2  Sprague,  17;  Holt  R.  R.  105. 
Amcskeag  M.  Co.  v.  The  John  •  The  Young  America,  1  Brown, 
Adams,  1  Cliff.  413.  See  O'Xeil  o.  550;  The  Victor,  1  Brown,  449;  Shir- 
Sears,  2  Sprague,  52.  ley  v.  Tlie  Richmond.  2  Woods,  58; 

«  Pope  r.  The  R.   B.   Forbes,  1  Tlie  Farragut.   10  Wall.  334;  The 

Cliff.  347;  The  Catherine  ».  Dickin-  Fannie,  11  Wall.  23ft;  The  Atlas, 

Bon,    17   How.   170;   Tlie  Genessee  10  Blatchf.   465;  4  Ben.   27;  The 

Chief,  12  How.  443;  The  Blossom,  Pennsylvania.  4  Ben.  2.')7;  9  Blatchf. 

Olcotfc,  194;  The  Emily,  Olcott,  l:i2;  451;  10  Wall.  125;  12  Blatchf.  67; 

a.  c.  1  Blatchf.  238;  Poole  r.  The  The   Ixmisiana,  ^  Am.   Law  Reg. 

Washington,   9   N.   Y.    Leg.    Obs.  422;  Mellon  p.  Smith,  2  E.  D.  Smith, 

821;  The  Alabama  and  Gamecock,  462;  The  Hattie  Ross,  U.  S.  D.  C. 

1  Ben.  478.   Whether  under  way  or  Conn.,  Shipman.  J..  1866;  The  Em- 

at  anchor:    The    Ann  Caroline,   2  pire  State.  2  Biss.  216. 
Wall.    538;   Whitridge   v.   Dill,  23         ♦  The Xal)ob.  1  Brown  Adm.  123; 

How.  448;   The    Marcia  Trilwu,  1  TheTx>uisianai>.  Tlie  Fisher, 21  How. 

Sprague,    17 ;    The    Emily,   Olcott,  1 ;  Western  Ins.  Co.  v.  The  Goody 

132;  The  Blossom,  Olcott,'  188;  The  Friends.  1  Bond,  459. 
Rebecca,    Blatchf.  &  H.  341;   The         »  The  Farragut.   10  Wall.  334: 

Cleraent,    17  Law   Rep.   444;   The  The  Fannie,  11  Wall.  238;  Shirley 

Chester,   3   Hagg.  Adm.  316;   The  r.  The  Richmond,  2  Woods,  .58. 
Diana,  Lush.  539 ;  The  City  of  Car-         •  The  Petrel,  6  McLean,  491. 


216  ADMIRALTY  LAW. 

approaching  a  sail-vessel,  and  a  neglect  of  this  duty  is 
contributorj  negligence ;  ^  and  every  doubt  should  be 
resolved  against  her,  until  clear  proof  to  the  contrary 
is  adduced.^ 

There  is  no  fixed  position  for  a  lookout  established 
by  law ;  ^  his  proper  position  is  where  he  can  see  as 
well  as  in  any  other  place.* 

Section  XVI.  —  RULES  OF  NAVIGATIOJ?". 

Every  steam-vessel  which  is  under  sail,  and  not 
under  steam,  shall  be  considered  a  sail- vessel ;  and 
every  steam-vessel  which  is  under  steam,  whether 
under  sail  or  not,  shall  be  considered  a  steam-vessel.^ 

The  rules  of  navigation  are  to  be  strictly  adhered 
to ;  ^  they  are  employed  as  standards  to  regulate  the 
appreciation  of  care,  skill,  and  fidelity  with  which  the 
vessel  performs  her  duties  in  cases  of  collision/ 

It  is  not  advisable  to  allow  these  important  regula- 
tions to  be  satisfied  by  equivalents,  or  by  anything  less 
than  a  close  and  literal  adherence  to  what  they  pre- 

1  The  Empire  State,  2  Biss.  216;  The  Carroll,  8  Wall.  302;  The  Fair- 
TheComet.  QBlatchf.  323;  McGrew  banks,  9  Wall.  420;  The  Corsica, 
V.  The  Melnotte,  1  Bond,  453.  9  AVall.  630;  The  Scotia,  14  Wall. 

2  The  Ariadne,  13  Wall.  475;  170;  The  Continental,  14  Wall.  345; 
The  Genessee  Chief,  12  How.  443;  The  Chesapeake,  5  Blatchf.  411;  The 
The  Louisiana  w.  Fisher,  21  How.  1.  Huntsville,   8    Blatchf.    228.     And 

8  The  Kallisto, 2  Hughes,  1 28 ;  The  see  Rev.  Stat.  §  4233. 
Flora,   2   Hughes,  114;    O'Neil  v.         «  The  Suunyside,  1  Brown  Adm. 

Sears,  2  Spragrue,  52;  The  Indiana,  250,  explaining  The  Gray  Eagle,  9 

Abb.  Adm.  330;  The  John  H.  Abeel,  Wall.  505;  The  Pilot,  1   Kiss.  1.59; 

4  Ben.  58;  The  Alma,  Holt  R.  R.  The  Scotland,  1  Ben.  295;  The  C.  C. 

250.  Vanderbilt,   Abb.    Adm.   361;   The 

<  The   Morning  Lisrht,  2  Wall.  Oregon  v.  Rocca,  18  How.  570;  The 

558;  The  Genessee  Chief,  12  How.  Hope,  1  W.  Rob.  154. 
443  ;  St.  John  v.  Paine,  10  How.         ">  The  Santa  Claus,  Olcott,  435; 

557.  The  Hope.  1  W.   Rob.   154;   The 

6  The  Hypodame,  6  Wall.  216;  Friend,  1  W.  Rob.  478. 


COLLISION.  217 

scribe^  (The  Emperor,  Holt  R.  R.  38) ;  but  they  are  not 
absolutely  inflexible.'^ 

They  do  not  apply  to  vessels  after  approaching  so 
near,  that  collision  is  inevitable ;  ^  or  while  they  are  so 
far,  that  measures  of  precaution  have  not  become  neces- 
sary.* 

Section  XVII.  — RIVER  NAVIGATION. 

Where  a  vessel  is  approaching  a  point  of  the  river 
where  there  are  dangerous  obstructions,  and  in  a  high 
state  of  the  wind,  it  is  her  duty  to  lie  by  till  the  wind 
has  gone  down.* 

Where,  to  avoid  the  danger  from  natural  obstruc- 
tions, a  vessel  changes  her  course,  after  passing  them 
she  is  bound  to  resume  her  original  course.^ 

The  master  of  a  steamer  is  bound  to  know  the  diffi- 
culties of  the  navigation.' 

Where  a  vessel  is  moving  down  with  the  current, 
meeting  a  vessel  going  up,  the  vessel  moving  the  slow- 
est is  less  bound  to  precaution.® 

An  overtaking  vessel  must  see  to  it  that  she  selects 
the  time  and  place  in  which  to  pass  safely  if  the  other 
does  nothing  to  thwart  her ;  and  she  is  in  fault  in  case 
of  a  collision.® 

1  The   Pennsylvania,    19    Wall.         »  The  Mohler,  21  Wall.  230. 
135.  •  The  John   L.   Uasbrouck,   93 

2  The  Santa  Claus,  Olcott,  435;    U.  S.  405. 

The  Friend,  1  W.  Rob.  478.  »  The  Lady  Pike,  21  Wall.  1. 

«  The  Wenona,  19  Wall.  52;  New         •  Waring  v.  Clarke,  5  IIow.  502; 

York,  &c.  Co.  ».  Rumball,  21  How.  The  Chester,  3  Hagg.  Adni.  316. 
372.  »  The  Oceanus,  5  Ben.  540;  12 

*  The  Wenona,  19  Wall.  52;  The  Blatchf.  430;  The  Narragansett,  5 

Monticello  v.  Mollison,  17  How.  152;  Ben.  258;  The  Governor,  Abb.  Adra. 

Baker  p.  The  City  of  New  York,  1  108;    Whitridge  r.    Dill,   23   IIow. 

Cliff.   89;  Newton  v.   Stebbius,  10  448;  The  Rhode  Island,  1  Blatchf. 

How.  580.  868. 


218  ADMIRALTY  LAW. 

Section  XVIIL  —  SAIL-YESSELS  MEETING. 

If  two  vessels  are  meeting  end  on,  or  nearly  end  on, 
so  as  to  involve  the  risk  of  a  collision,  the  helms  of 
both  shall  be  put  to  port,  so  that  each  may  pass  on  the 
port  side  of  the  other ;  and  a  neglect  to  do  so,  or  a  star- 
boarding, is  a  fault.^ 

If  vessels  are  approaching  each  other  end  on,  with 
berth  enough  to  exclude  the  possibility  of  their  coming 
together,  they  are  not  required  to  port  helm.^ 

Section  XIX.  —  STEAMERS  MEETING. 

If  two  steamboats  are  approaching  each  other  in  such 
a  direction  that  there  is  danger  of  a  collision,  each 
should  put  her  helm  aport,  and  go  to  the  right.^ 

When  steamers  meeting  steamers  end  on  neglect, 
until  too  late  to  avoid  a  collision,  to  comply  with  the 
regulations  to  port  helms,  proof  of  porting  the  helm 
is  no  defence ;  compliance  with  the  rule  must  be 
seasonable.* 

Section  XX.— STEAMER  MEETING  SAIL-VESSEL. 

If  two  vessels,  one  a  sail-vessel  and  the  other  a  steam- 
vessel,  are  proceeding  in  such  directions  as  to  involve 
risk  of  collision,  the  steam-vessel  shall  keep  out  of  the 

1  The  Nichols,  7  Wall.  656;  The  »  City  of  Hartford  r.  The  Unit, 
Queen  Dowager,  Pratt  on  Lights,  58;  11  Blatchf.  72;  New  York  Trans.  Co. 
The  Gratitude,  4  Ben.  62;  The  Ed-  r.  Philadelphia  S.  N.  Co.,  22  How, 
mund  Levy,  6  Ben.  371 ;  The  Syl-  461 ;  Union  S.  S.  Co.  v.  New  York 
vester  Hall,  6  Ben.  52-3;  The  E.  C.  S.  S.  Co..  24  How.  307;  Wearing  v. 
Scranton,  3  Blatchf.  53;  The  Niag-  Clarke,  5  How.  502;  St.  John  v. 
ara,  3  Blatchf.  37.  Paine,  10  How.  557;  The  Johnson. 

2  The  George  Law,  3  Ben.  466;  9  Wall.  153;  The  Nichols,  7  Wall. 
The  Nichols,  7  Wall.  656;  Ward  v.  656;  The  Oregon  v.  Rocca,  18  How. 
The  Ogdensburgh,  5  McLean,  637;  570. 

Newb.  153;  The  Rose,  2  W.  Rob.  1.        *  The  America,  92  U.  S.  432. 


COLLISION.  219 

way  of  the  sail-vessel,  and  the  sail-vessel  shall  keep 
her  course ;  ^  and  the  steamer  will  he  deemed  in  fault 
for  not  keeping  out  of  the  way.^ 

When  the  sail-vessel  changes  her  course,  the  steamer 
should  change  also,  to  avoid  a  collision.* 

After  the  sail-vessel  has  put  about  and  come  on  her 
new  course,  she  is  bound  to  keep  it,  and  the  steamer 
must  keep  out  of  her  way.* 

Section  XXI.  — VESSEL  TO  HOLD  HER  COURSE. 

The  duty  of  the  sail-vessel,  even  with  the  wind  free, 
to  hold  her  course  is  imperative.** 

She  has  no  right  to  deviate,®  except  it  be  necessary 
to  avoid  immediate  danger  arising  from  natural  causes,^ 
or  when  there  is  an  immediate  danger  of  collision  ;  * 
but  she  has  no  right  to  deviate  because  she  might 
thereby  avoid  a  collision,  unless  in  case  of  imminent 
danger.' 

A  vessel  whose  duty  it  is  to  keep  her  course  should 

1  The  Scotia,  14  Wall.  170;  St,  The  City  of  Paris,  9  WaU.  634;  The 
John  r.  Paine,  10  How.  557;  The  Fannie,  11  Wall.  2:58. 
Lucille,  15  Wall.  676;  The  Falcon,  •  The  Carroll,  8  Wall.  302;  The 
19  Wall.  75;  New  York,  &c.  Co.  v.  Johnson,  9  Wall.  146;  Crockett  v. 
Philadelphia,  &c.  Co.,  22  How.  472;  Newton,  18  IIow.  581;  New  York, 
The  Genes-see  Chief,  12  IIow.  443;  &c.  Co.  v.  Riimball,  21  IIow.  372. 
New  York,  &c.  Co.  v.  Rumball,  21  '  The  John  L.  Iliisbrouck.  95 
How.  384;  Newton  v.  Stebhins,  10  U.  S.  405;  The  Comeliu-s  C.  Van- 
How.  580;  Crockett  v.  Newton,  derbilt,  Abb.  Adm.  364;  The  Nar- 
18  IIow.  581;  The  Oregon  v.  Roc-  rau:ansett,01cott,  388;  The  Neptune, 
ca,  18    IIow.    570 ;    The    Fannie,  oicott,  48:J. 

11  Wall.  238;  The  City  of  Paris,  0  »  The  Monticello  r.  Iklollison,  77 
Wall.  638;  The  Syracuse,  9  Wall.  How.  152;  Peck  r.  Sanderson,  17 
676.  IIow.  178 ;  The  Ariadne,  2  Ben.  472; 

«  St.  John  V.  Paine,  10  IIow.  557.  7  lilatchf.  21 1 ;  13  Wall.  475. 

•  The  Scotia,  14  Wall.  170.  »  Crockett  v.  Newton,  18  IIow. 

•  New  York,  &c.  Co.  v.  Rumball,  581 ;  New  Y'ork.&c.  Co.  r.  Runjball, 
21  IIow.  372;  The  Genessee  Chief,  21  IIow.  372;  The  Johnson,  9  Wall. 

12  IIow.  413.  146;  The  Carroll,  8  WaU.  302;  The 

•  BenUey  v.  Coyne,  4  Wall.  509;    Coreica,  9  Wall.  630. 


220  ADMIRALTY  LAW. 

not  anticipate  the  motions  of  the  other  vessel,  and  give 
way ;  the  certainty  which  results  from  adhesion  to 
general  rules  is  absolutely  essential  to  the  safety  of 
navigation.^ 

If  the  breach  of  the  rule  requiring  vessels  to  hold 
their  course  did  not  contribute  to  the  collision,  the  vio- 
lation will  have  no  effect.^ 

Section  XXIL— VESSELS  OVERTAKING. 

Every  vessel  overtaking  any  other  vessel  shall  keep 
out  of  the  way  of  the  last-named  vessel.^ 

There  is  imposed  upon  the  rear  boat  an  obligation 
to  precaution  and  care,  which  is  not  chargeable  to  the 
same  extent  to  the  other* 

A  steamer  about  to  cross  another  steamer  on  her 
starboard  side,  and  being  also  the  following  vessel,  was 
in  fault  in  case  of  a  collision.^ 

Section  XXIIL  —  DEPARTURE  FROM  RULES. 

In  general,  established  rules  and  known  usages  should 
be  carefully  followed ;  but  no  vessel  is  justified  by  a 
pertinacious  adherence  to  a  rule  for  getting  into  a  col- 
lision with  a  ship  which  she  might  have  avoided.^ 

1  The  Ariadne,  13  Wall.  475.  Cotisort,  Holt  R.  R.  220;  The  Evan- 

2  The  Fairbanks.  9  Wall.  425;    geline,  Holt  R.  R.  217. 

New  York,  &c.  Co.  v.  Rumball,  21         <  The  Great  Republic,  23  Wall. 

How.  372;  The  Genessee  Chief,  12  20;    Whitridge   v.    Dill,   23   How. 

How.  443;  The  Monticello  v.  Mol-  448. 

lison,  17   How.   154  ;    St.   John  v.         «  The  Columbia,  10  Wall.  246. 
Paine,  10  How.  557;  The  Emma,         •  Allen  v.  Mackay,   1   Sprague, 

HoltR.  R.  207.  219;   The  C.  C.  Vanderbilt,  Abb. 

8  The  Grace  Girdler,  7  Wall.  196;  Adm.  361;  The  Friend,  1  W.  Rob. 

The  Lena,  Holt  R.  R.  61,  313;  The  478.     And  see  Wedgwood,  Govern- 

Emma,  Holt  R.   R.  252 ;   The  In-  ment  and  Laws  of  the  United  States, 

trepide.  Holt  R.  R.  210;  The  Em-  pp.  279-281. 
ily,  Holt  E.   R.  217;   The  Royal 


COLLISION.  221 

The  rules  are  not  inflexible,  and  a  strict  observance 
should  be  avoided  when  there  is  a  plain  risk  in  ad- 
hering to  them;^  they  must  not  be  stubbornly  ad- 
hered to.'' 

These  rules  have  their  exceptions  in  extreme  cases, 
depending  upon  the  special  circumstances  of  the  case, 
and  in  respect  to  which  no  general  rule  can  be  ap- 
plied.* 

On  departure  from  the  rules,  the  vessel  takes  on  her- 
self the  obligation  of  showing  that  the  departure  was 
necessary  to  avoid  immediate  danger,  and  that  the 
course  adopted  was  reasonably  calculated  to  do  so.* 

Section  XXIV.  — ERROR  IN  EXTREMIS. 

Where  a  vessel  commits  an  error  under  impending 
danger,  or  in  extremis^  produced  or  brought  about  by 
another  vessel,  such  error  cannot  be  alleged  as  a 
fault."^ 

Acts  done  in  the  excitement  of  the  moment,  and 
in  extremis,  are,  if  unwise,  errors,  and  not  faults  j  whether 
wise  or  unwise  is  not  material  .• 

1  Tlje  Pilot,   1   Diss.   163;  The         ♦  The  Corsica,  9  Wall.  630;  The 

Santa  Claus,  Olcott,  428 ;  1  Blatchf .  Concordia,  Law  Rep.  1  Adm.  93 ; 

870.  Holt  R.  R.  142. 

«  The  Sunnyside,  1  Brown  Adm.         *  Bentley  v.  Coyne,  4  Wall.  509; 

250,  explaining  Crockett  i;.  Newton,  The   Nichols,   7   Wall.    656  ;    The 

18  How.  581.  Fairbanks,  9  Wall.  420;  The  City 

«  St.  John  r.  Paine,  10  How.  657;  of  Paris,  9  Wall.  634;  The  Grace 

The  Cayujja,   14  Wall.  276;   New  Girdler,  7  Wall.  201 ;  The  Genessee 

York,  &c.  Co.  V.  Rumball,  21  How.  Chief,  12  How.  443;  New  York,  &c. 

372;  The  Orinoco,  Holt  R.  R.  98;  Co.  r.  Rumball,  21  How.  372.     And 

The   Flora,    Holt  R.   R.   114;  The  see  Whitridge  y.  Dill,  23  How.  448; 

Great    Eastern,    Holt    R.    R.    167;  The  Lucille,  15  Wall.  676. 
Br.  &  L.  289;  The  Graaf  Von  Rech-         •  The   City   of    Paris,  9    WalL 

teren,  Holt  R.  R.  247;  The  Emma,  634;  The  Genessee  Chief,  12  How. 

Holt  R.  R.  207;  The  Aura,  Holt  R.  448. 
R.  255;  The  Grace  Girdler,  9  WaU. 
196. 


222  ADMIRALTY  LAW. 

Even  when  a  wrong  order  is  given,  under  the  exi- 
gency of  the  circumstances  it  cannot  be  considered 
a  fault.^ 

In  a  case  of  sudden  emergency,  leaving  no  time  for 
deliberation,  great  allowance  should  be  made  for  any 
error  in  judgment.^ 

A  vessel  may  put  her  helm  to  port  or  to  starboard 
when  a  collision  is  inevitable,  although  it  would  have 
been  an  improper  course  to  pursue  before  collision  was 
inevitable.^ 

A  fault  on  the  part  of  a  sail-vessel  at  the  moment 
of  the  injury  will  not  excuse  a  steamer  which  has  suf- 
fered herself  to  get  into  such  dangerous  proximity  as 
to  cause  the  collision.* 

Section  XXV.  —  NEGLIGENCE. 

Inability  to  prevent  a  collision  exists  at  the  time  it 
occurs  ;  but  it  is  generally  easy  to  trace  the  cause  to 
some  neglect  or  unskilful  act,  or  antecedent  omission 
of  duty.** 

Though  a  steamer  displays  proper  lights,  she  will 
not  be  held  blameless  if  she  neglects  other  duties  to 
avoid  collision.^ 

1  The  Genessee  Chief,  12  How.  timore,  8  Wall.  377;  The  Fannie, 

443.  II  Wall.  238.    Dangerous  proximity 

*  The  Merrimac,  14  Wall.  199;  must  be  produced  altogether  by  the 
The  Wenona,  19  Wall.  54 ;  The  steanner.  Haney  v.  Baltimore  S. 
Fairbanks,  9  Wall.  425.  &   P.    Co.,    23    How.    395;     New 

«  The  Ottawa,  3  Wall.  268;  The  York,  &c.  Co.  v.  Rumball,  21  How. 

Maria,  Holt  R.  R.  105;  TheTyrian,  372;  The  Genessee  Chief,  12  How. 

Holt  R.  R.  109;  The  Calvpso,  Holt  443. 

R.  R.  117;  The  Hannah  Park,  Holt  «  The  Merrimac,  14  Wall.  203; 

R.  R.  61 ;  The  Carlisle,  Holt  R.  R.  New  York,  &c.  Co.  v.  Rumball,  21 

121;   The  Evangeline,  Holt  R.  R.  How.  372;  The  Wenona,  19  Wall. 

222.  41. 

*  The  Lucille,  15  Wall.  676;  The  «  The  Continental,  14  Wall.  359; 
Carroll,  8  Wall.  302;  The  Falcon,  The  Gray  Eagle,  9  Wall.  505;  2 
19  Wall.  78,  distinguishing  The  Bal-  Diss.  25;  1  Diss.  476. 


COLLISION.  223 

It  is  negligence  on  the  part  of  a  steamer  in  not  see- 
ing the  lights  of  an  approaching  vessel,'  and  a  gross 
fault  for  not  perceiving  that  a  light  which  must  have 
crossed  from  larboard  to  starboard  was  in  motion  and 
not  at  anchor.* 

Section  XXVL  — FAULTS. 

If  the  unskilfulness  or  want  of  necessary  qualifica- 
tions of  the  deck  officer  contributed  to  the  collision, 
the  vessel  under  his  charge  will  be  considered  in 
fault.^* 

Sectioh  XX VIL— inevitable  ACCIDENT. 

Different  definitions  are  given  of  inevitable  acci- 
dent, from  the  different  circumstances  attending  the 
collision  to  which  the  rule  is  to  be  applied.* 

An  inevitable  accident  is  that  which  the  party 
charged  with  the  offence  could  not  possibly  prevent 
by  the  exercise  of  ordinary  care,  caution,  or  nautic«al 
skill.*^ 

Mr.  L.awson  "  says.  Sir  William  Jones  piously  objected 
to  the  use  of  the  phrase  "  the  act  of  God,"  as  being 
irreverent,  and  proposed  to  put  that  of  **  inevitable 
accident"  in  its  stead,  intending,  apparently,  to  give 

»  The  Java,  6  Ben.  245;  14  Wall.  216;  Union  S.  S.  Co.  r.  New  York, 

189.  &c.  Co.,  24  How.  307;  The  Jamea 

«  The  Gray  Eagle,  9  Wall.  505.  Gray  v.  The  John  Frazer,  21  How. 

•  Chamberlain  c.  Ward,  21  How.  184;  The  Perseverance,  Holt  R.  R. 
618;  Haney».  Baltimore  S.  P.  Co.,  262;  The  Thomas  Powell  v.  The 
23  How.  287;  Union  S.  S.  Co.  v.  Cuba,  2  Mar.  Law  Cases,  344.  See 
New  York,  &c.  Co.,  24  How.  307.  also   Flanders  on  Mar.  Law.  298  ; 

*  The  Morning  Light,  2  Wall.  Lucas  r.  The  Swan,  Newb.  158;  s.  c. 
560;  Union  S.  S.  Co.  v.  New  York,  6  McLean,  282. 

&c.  Co.,  24  How.  307.  •  Contracts  of  Carriers,  by  John 

»  The  Morning  Light,  2  Wall.  D.  Lawson  (Editor  Central  Law 
560;  The  Mabeyand  Cooper,  14  WaU.    Journal),  St.  Louis,  1880. 


224  ADMIRALTY  LAW. 

the  same  restricted  meaning  to  the  latter  phrase  as 
had  been  given  to  the  former. 

Section  XXVIIL  —  CONTRIBUTORY  NEGLIGENCE. 

Where  damage  is  occasioned  by  carelessness  of  the 
party  injured,  an  action  will  not  lie.^ 

Section  XXIX.  —  BURDEN  OF  PROOF  OF  FAULT. 

The  burden  of  proof  is  on  the  libellant  to  establish 
fault  in  the  vessel  libelled.^ 

He  must  prove  both  care  on  his  part,  and  the  want 
of  care  on  the  part  of  the  defendant.^ 

He  must  show  the  other  vessel  in  fault,  and  that  his 
was  managed  in  a  prudent  and  skilful  manner,  and 
interposed  no  needless  impediments.* 

Where  every  precaution  is  taken  by  the  steamer, 
and  damage  is  caused  by  negligence  of  the  vessel,  the 
vessel  is  in  fault.^ 

Section  XXX.  — LIABILITY  FOR  DAMAGES. 

The  mere  fact  of  a  collision  and  damage  does  not 
render  the  vessel  liable  ;  ^  and  where  a  fault  did  not 
contribute  to  the  collision,  there  can  be  no  recovery.' 

Section  XXXI.  —  PERSONAL  LIABILITY. 
The  liability  of  the  vessel  and  the  responsibility  of 

1  Waring  v.  Clarke,  5  How.  441;  '  Lowry  v.  The  Portland,  1  Law 
Newton  v.  Stebbins,  10  How.  580.       Rep.  3l3. 

2  The  Kallisto,  2  Hughes,  128.  «  Stargis  v.  Boyer,  24  How.  124; 
8  The  Steam  Tug  Wiiliam  Young,    The  Albert,  11  Law  Rep.  N.  s.  41; 

Olcott,   38;   The  Columbus,   Abb.    The  James  Gray ».  The  John  Frazer, 
Adm.  37 ;  The  Freemont,  1  Bond,  57.    21  How.  184. 

*  Smith  V.  Condry,  1  How.  28;         ">  The  Manhassett,  6  Ben.  301. 
The  Alexander  Wise,  2  W.  Rob.  65. ' 


COLLISION.  225 

the  owners  are  convertible  terms,  and  one  cannot  exist 
without  the  other.^ 

Section  XXXn.  —  LIABILITY  WHEN  PILOT  ON  BOARD. 

Where  the  statute,  compelling  a  vessel  to  take  a  pilot, 
contains  no  clause  exempting  the  vessel  or  owners  from 
liability  for  the  pilot's  mismanagement,  the  vessel  will 
be  liable,  though  the  collision  result  wholly  from  the 
pilot's  mismanagement.* 

In  a  case  of  collision,  a  steamboat  is  clearly  in  fault 
in  not  having  a  licensed  pilot  at  the  wheel,  and  a  proper 
officer  in  charge,  on  watch,  and  in  not  being  in  her 
place  in  the  river.* 

Section  XXXIH.  —  LIABILITY  OF  TUG  AND  TOW. 

Where  the  officers  and  crew  of  the  tow,  as  well  as 
those  of  the  tug,  participate  in  the  navigation  of  the 
vessels,  and  a  collision  with  another  vessel  ensues,  the 
tug  alone,  or  the  tow  alone,  or  both  jointly,  are  liable, 
according  to  their  negligence  or  want  of  skill.*  The 
responsibility  is  determined  by  inquiring  which  vessel 
was  the  principal  and  which  the  servant.^ 

Section  XXXIV.  —  OBSTRUCTION  OP  CHANNEL. 

If  a  person  wrongfully  obstructs  a  navigable  stream, 
he  is  liable  for  the  consequences.® 

1  The  Freeman  v.  Buckingham,         ♦  The  Maria  Martin,  12  Wall.  44; 

18  How.  189;  Taylor  v.  Carryl,  20  Sturgia  v.  Boyer,  24  How.  121;  The 

How.  599.  Syracu.se,  12  Wall.  167. 

«  The  China,  7  Wall.  63.  »  The  Alabama.  1  Ben.  476;  The' 

•  The   John    F.    Tolle    (Circuit  Sampson,  3  Wall.  Jr.  14. 
Court,  E.  D.  Ix)uisiana,  June,  1881,         •  Philadelphia,  &c.  Co.  v.  Phila- 

by    Pardee,    Ct.    J.,    reported    by  delphia  S.  T.  Co.,  23  How.  209. 
Joseph  P.  Homor,  Esq.,  of  the  New 
Orleans  Bar). 

16 


226  ADMIRALTY  LAW. 

It  is  familiar  doctrine  that  the  right  of  eminent 
domain  over  the  shores  and  the  soil  under  the  waters 
resides  in  the  State  for  all  municipal  purposes,  and 
within  the  legitimate  limitations  of  this  right  the  power 
of  the  State  is  absolute,  and  an  appropriation  of  the 
shores  and  lands  is  lawful.  In  the  exercise  of  this 
right,  the  State  may  directly  or  indirectly,  by  dele- 
gation, authorize  the  construction  of  bridges,  piers, 
wharves,  or  other  obstructions  in  navigable  waters. 
'  Such  obstructions  are  not  nuisances,  because  that  can- 
not be  a  nuisance  which  is  done  by  lawful  authority. 
It  is  only  when  the  exercise  of  this  power  of  eminent 
domain  comes  in  collision  with  the  paramount  authority 
of  the  United  States  that  it  is  inhibited  and  impotent. 
The  power  of  the  State  ends  where  that  of  the  national 
sovereignty  begins ;  but  until  Congress  has  asserted  its 
power  to  regulate  commerce,  and  by  legislation  has  as- 
sumed to  restrict  the  jurisdiction  of  the  State  over  its 
navigable  waters,  no  conflict  can  arise,  and  the  authority 
of  the  State  is  comprehensive.  Willson  v.  The  Black- 
bird Creek  Marsh  Co.,  2  Pet.  251 ;  Oilman  v.  The  City 
of  Philadelphia,  3  Wall.  728 ;  County  of  Mobile  v.  Kim- 
ball, 102  U.  S.  691. 

No  act  of  Congress  has  been  adverted  to  by  counsel, 
or  has  met  the  observation  of  the  court,  which  assumes 
to  circumscribe  the  State  of  New  York  in  the  exercise 
of  its  power  of  eminent  domain  from  authorizing  such 
a  limited  interference  with  the  navigation  of  the  Hud- 
son River  as  is  apprehended  here. 

On  the  contrary,  the  cases  decided  in  this  court  — 

*  Silliman  v.  Hudson  River  Bridge   Co.,  4  Blatchf  395 

(affirmed  by   the    Supreme  Court,  2  Wall.    403),  and 

Silliman  v.  The  Troy  &  West  Troy  Bridge    Co.,    11 

Blatchf  274  —  are  to  the  effect  that  a  far  more  serious 


COLLISION.  227 

obstruction  to  the  navigation  of  the  river  is  within  the 
legitimate  sanctions  of  the  municipal  power. 

These  cases  are  decisive  against  the  theory  that  the 
defendant  cannot  occupy  a  portion  of  the  river  for  the 
purposes  of  its  railroad  without  an  invasion  of  public 
right.^ 

Section  XXXV.— LIMITATION  OF  LIABILITY. 

The  owners  are  limited  in  their  liability  for  a  loss  by 
collision  to  the  amount  of  their  interest  in  the  vessel 
and  freight.^ 

Their  liability  may  be  discharged  by  surrendering 
and  assigning  to  a  trustee,  for  the  benefit  of  the  parties 
injured.* 

Section  XXXVI.  —  REMEDY. 

The  proceedings  may  be  in  rem,  or  the  lien  may  be 
waived,  and  proceedings  in  personam  may  be  maintained 
against  the  master  and  owners.* 

Section  XXXVIL  -  RULE  OF  DAMAGES. 

Where  the  collision  is  not  wilful,  the  general  rule  of 
damages  is  that  the  owner  of  the  injured  vessel  is  to 
receive  a  remuneration  which  will  place  him  in  a  situa- 
tion in  which  he  would  have  been  but  for  the  collision.^ 


1  Peter   Ormerod   v.    The    New  385;    The   Niagara   v.   Cordes,   21 

York,  West  Sliore,  &  Buffalo  Rail-  How.  7. 

wayCo.,  United  States  Circuit  Court,         •  Norwich  Co.  r.  Wright,  13  Wall. 

Southern    District   of    New    York,  104. 

Wallace,  J.  (published  in  the  New         *  The  Belfast,  7  Wall.  643;  Stur- 

Orleans  Times- Democrat  of  Sept.  5,  gis  v.  Boyer,  24  How.  1 10 ;  Cham- 

1882,  from  the  New  York  Maritime  berlain  i>.  Ward,  21  How.  539. 
Register).  »  The   Baltimore,  8  WaU.  886; 

*  Norwich    Co.    r.    Wright,    13  Williamson   v.   Barrett,    13    How. 

Wall.  104;  The  Baltimore,  8  WaU.  101. 


228  ADMIRALTY  LAW. 

Upon  a  libel  in  admiralty  for  a  collision,  the  libellant 
may  be  allowed  damages  for  the  loss  of  the  use  of  his 
vessel  while  laid  up  to  repair  the  injuries  thereby  suf- 
fered ;  and  if,  at  the  time  of  the  collision,  she  was  in  no 
need  of  repair,  and  was  engaged  in  and  peculiarly  fitted 
for  a  particular  business,  and  her  charter  value  cannot 
be  otherwise  satisfactorily  ascertained,  the  average  of 
the  net  profits  of  her  trips  for  the  season  may  be 
adopted  as  the  measure  of  the  allowance.^ 

The  actual  loss  at  the  time  and  place  of  the  injury 
is  the  measure  of  damages.* 

Section  XXXVHL— ALLOWANCE  FOR  REPAIRS. 

The  general  measure  of  damages,  where  repairs  are 
practicable,  is  such  a  sum  as  will  restore  the  vessel  to 
her  former  condition.^ 

The  party  is  to  be  put  in  the  same  situation  as  nearly 
as  possible  as  he  would  have  been  had  no  collision  taken 
place.* 

Where  a  vessel  is  actually  sunk,  her  owner  is  not 
bound  to  go  to  any  expense  to  raise  her.^ 

Section  XXXIX.  —  ALLOWANCE  FOR  DEMURRAGE. 

Compensation  may  include  a  reasonable  allowance  for 
demurrage  for  unavoidable  detention  during  repairs.® 

1  Steamboat  Potomac  r.  Cannon,  »  The  Cayuga,  14  Wall.  278; 
Morrison's  Transcript  (vol.  iv.  No.  The  Baltimore,  8  Wall.  385;  The 
3,  p.  839)  of  the  Decisions  of  the  Ann  Caroline,  2  Wall.  538;  Valen- 
Supreme  Court  of  the  United  States,  tine  t?.  The  Lake,  2  Wall.  Jr.  52, 
October  Term,  1881;  s.  c.  The  *  The  Granite  State,  3  Wall. 
Reporter,  vol.  xiii.  No.  25,  p.  769  310. 

(Boston,  1882).  »  The  Falcon,  19  Wall.  79. 

2  Smith  V.  Condry,  1  How.  28;         «  Williamson  v.  Barrett,  13  How. 
Williamson  v.  Barrett,  13  How.  113;  101;  The  Baltimore,  8  Wall.  377. 
The  Gazelle,  2  W.  Rob.  279. 


COLLISION.  229 

Section  XL.  — ALLOWANCE  FOR  LOSS  OR  DAMAGE  TO 

CARGO. 

The  owners  of  a  vessel  wrongfully  injured  by  a  col- 
lision may  recover  for  injury  done  to  the  cargo.^ 

Section  XLI.  -  LOSS,  WHEN  DIVIDED. 

The  loss  will  be  divided  in  three  cases :  first,  when 
there  is  no  fault  on  either  side  ;  second,  when  the  fault 
is  inscrutable  ;  and,  third,  when  both  vessels  are  in 
fault.=» 

Where  there  is  no  fault  on  either  side,^  or  if  it  cannot 
be  ascertained  where  the  fault  lies,  the  damages  will 
be  divided.* 

Where  there  is  reasonable  doubt  as  to  which  party 
is  to  blame,  the  loss  must  be  sustained  by  the  one  on 
whom  it  has  fallen.* 

Where  both  parties  are  in  fault,  the  loss  will  be 
divided.** 

Section  XLH.  —  APPORTIONMENT  OF  DAMAGES. 

Where  a  collision  was  caused  by  the  fault  of  two 
vessels,  both  are  liable  in  damages  to  a  third  party.' 

1  The  Commerce,  1  Black,  574;  Grace  Girdler,  7  Wall.  203;  Peck  r. 

The  Commauder-iu-Chief,   1  Wall.  Sanderson,  17  How.  178. 
473.  «  The  James  Gray  v.  The  John 

»  O'Neil  V.  Sears,  14  Law  Rep.  Frazer,  21  How.  184;  Rogers  v.  The 

N.  8.  731.  St.  Charles,  19  How.  108;  The  Sap- 

«  Waring  r.  Clarke,  5  How.  441;  phire,   18  Wall.   51;  The  Morning 

Smith  V.  Condry,  1  How.  28.  Light.  2  Wall.  550;  The  Maria  Mar- 

*  Strout  V.   Foster,  1  How.   92;  tin,  12  Wall.  43;  The  Continental, 

The  Catharine  r.  Dickinson,  17  How.  14  Wall.  361;  Union  S.  S,  Co.  r. 

177.  New  York,  &c.  Co.,  24  How.  307; 

»  The  Farragut,   10  Wall.  334;  The  Catharine  r.  Dickinson,  17  How. 

The  S.  B.  Wheeler,  20  Wall.  385;  177. 

The  Gray  Eagle,  9  Wall.  505;  The         »  The  D.  S.  Gregory,  2  Ben.  226; 

Great  Republic,  23  W^all.  20;  The  The  Monitor  and  Hill,' 3  Biss.  25. 


230  ADMIRALTY  LAW. 

The  owner  of  the  injured  vessel  is  entitled  to  com- 
pensation for  loss  or  injury  from  either  or  both.^ 

Section  XLHL— LIEN  FOR  DAMAGES. 

The  owner  of  the  injured  vessel  has  a  lien  on  the 
offending  vessel  for  the  damages,  equal  in  rank  to  the 
liens  of  material-men,  bottomry,  and  others,^  which  it 
carries  with  it  into  whosesoever  hands  it  may  come.^ 

'  The  New  Philadelphia,  1  Black,         «  The  Rock  Island  Bridge  Co., 
62;  The  Washington  and  Gregory,  9    6  Wall.  213. 
Wall.  516.  8  The  China,  7  WaU.  68. 


SEAMEN.  231 


CHAPTER  V. 

SEAMEN. 

Sbctiok  I.  —  THEIR  RIGHTS  AND  OBLIGATIONS.     WHO 
ARE  SEAMEN. 

For  tlie  rights  and  obligations  of  seamen,  as  regu- 
lated by  statute,  see  U.  S.  Rev.  Stat.  §§  4501-4612, 
inclusive. 

For  the  right  of  seamen  to  claim  salvage  for  service 
rendered  to  his  own  vessel,  see  ante^  Chapter  IL,  Sal- 
vage, Section  XL,  and  Le  Janet,  3  Law  Rep.  556  (Lon- 
don, 1872),  Adm.  &  Ecc.  And  the  crew  are  entitled 
to  salvage  of  ships  belonging  to  the  same  owner.  The 
Sappho,  3  Law  Rep.  Adm.  &  Ecc.  142  (1872). 

A  seaman  upon  a  schooner  in  the  harbor  of  Frank- 
fort, Michigan,  where  she  was  towed  to  receive  a  cargo 
of  lumber,  cannot  refuse  to  work  on  Sunday,  in  loading 
the  schooner,  when  the  towing  vessel  is  unable  to  enter 
the  harbor  by  reason  of  an  insufficiency  of  water,  and 
is  lying  outside  in  the  lake,  awaiting  the  schooner,  and 
in  a  place  of  danger.* 

The  wages  earned  by  a  seaman,  in  the  coastwise 
trade  of  the  United  States,  are  not  subject  to  garnish- 
ment at  the  instance  of  the  creditor  of  the  seaman  in 
an  action  at  law.'' 

»  Smith  p.  Schr.  J.  C.  King,  111  Southern  District,  New  York,  1880, 

Fed.  Rep.  302.  4  Fed.  Rep.  818.    This  is  a  very  able 

•  McCarthy  v.    Steam  Propeller  decision   by  Benedict,  D.   J.,  and 

City  of  New  Bedford,  District  Court,  occupies  some  eighteen  pages. 


232  ADMIRALTY  LAW. 

In  suits  for  seamen's  wages,  interest  is  allowed  from 
the  time  of  the  demand  j  and  if  no  demand  is  proved, 
then  from  the  time  of  the  commencement  of  the  suit^ 
brought  in  a  State  court. 

By  the  United  States  Revised  Statutes,  §  4612,  tit. 
liii.  ch.  7,  "  Merchant  Seamen,"  it  is  provided  that,  "  In 
the  construction  of  this  title,  every  person  having  the 
command  of  any  vessel  belonging  to  any  citizen  of 
the  United  States  shall  be  deemed  to  be  the  *  master ' 
thereof;  and  every  person  (apprentices  excepted)  who 
shall  be  employed  or  engaged  to  serve  in  any  capacity 
on  board  the  same  shall  be  deemed  and  taken  to  be  a 
*  seaman ; '  and  the  term  *  vessel '  shall  be  understood 
to  comprehend  every  description  of  vessel  navigating 
on  any  sea  or  channel,  lake  or  river,  to  which  the 
provisions  of  this  title  may  be  applicable ;  and  the 
term  ^  owner '  shall  be  taken  and  understood  to  com- 
prehend all  the  several  persons,  if  more  than  one,  to 
whom  the  vessel  shall  belong." 

In  the  case  of  Ah  Hohn  d  als.  v.  Steamship  Meta- 
pedia.  United  States  District  Court,  Eastern  District  of 
Louisiana,  on  the  28th  of  November,  1882,  the  follow- 
ing decision  was  rendered  by  Billings,  J. :  — 

This  is  a  suit  instituted  by  subjects  of  the  Empire  of  China 
against  a  British  vessel.  They  were  shipped  at  a  port  within 
the  United  States,  namely,  at  San  Francisco,  for  a  voyage 
which  was  to  occupy  three  years,  and  were  to  be  discharged 
at  Hong  Kong.  The  whole  question  is,  Does  the  statute  oi 
June  7,  1872,  17  Stat.  p.  262  (R.  S.  at  various  sections,  from 
section  4501-4612),  apply  to  a  British  vessel  ?  The  conclu- 
sion which  I  have  reached  is,  that  it  does  not.  The  act  of 
June  7,  1872,  is,  in  the  provisions  which  relate  to  the  ship- 
ping of  seamen,   a  literal   copy  of  the  Merchant  Shipping 

1  Garamell  v.  Skinner,  2  Gall.  45;  The  Seaman's  Friend,  by  R.  H.  Dana, 
Jr.  (13th  ed.)  224. 


SEAMEN.  233 

Act,  enacted  by  the  Parliament  of  Great  Britain  in  the  year 
1854. 

In  section  160  of  the  act  of  the  Parliament  of  Great  Brit- 
ain (17  &  18  Vict.  ch.  104,  Digest  of  Statutes  relating  to 
Merchant  Shipping,  p.  102),  it  is  enacted  that  British  ships 
which  engage  seamen  at  any  place  out  of  her  Majesty's 
dominions  shall  enter  into  the  engagement  with  the  sanction 
of  the  British  oflBcers,  and  according  to  that  act  of  Paliament. 
In  section  15  of  the  act  of  the  Congress  of  the  United  States, 
vol.  xvii.  of  Statutes  at  Large,  p.  265,  it  is  enacted  totidem 
verbis  that  merchant-ships  of  the  United  States,  who  engage 
seamen  at  any  place  out  of  the  United  States,  shall  enter  into 
the  engagement  with  the  sanction  of  the  consular  officers  of 
the  United  States,  and  according  to  that  act  of  the  Congress. 
Such  an  adoption  on  the  part  of  the  United  States  in  the 
year  1872  of  a  statute  of  Great  Britain  passed  in  the  year 
1854,  such  a  coincidence  in  the  legislation  of  the  two  na- 
tions, furnishes  a  guide  to  the  courts  of  each,  in  the  con- 
struction of  these  statutes,  equivalent  to  a  treaty  stipulation ; 
for  it  cannot  be  supposed  that  our  government  would  copy 
the  statute  of  England,  and  thereby,  through  its  legislation, 
assert  the  supremacy  of  its  laws  in  places,  and  under  certain 
circumstances,  in  England,  when  it  was  not  willing  to  con- 
cede an  ascendency  to  the  laws  of  England  in  similar  places, 
and  under  similar  circumstances,  within  our  own  territory. 
These  statutes,  then,  must  be  considered  as  a  mutual  conces- 
sion that  either  nation,  in  shipping  her  seamen  upon  her  mer- 
chant-vessels, was  to  follow  her  own  laws,  even  when  the 
shipping  was  effected  within  the  territory  of  the  other  ;  and 
it  would  follow  that  the  act  of  1872  could  not  include  in  its 
operation  British  ships. 

The  structure  of  the  statute  of  1872  brings  me  to  the  same 
conclusion.  The  title  of  the  statute  is,  "An  Act  to  author- 
ize the  appointment  of  shipping  commissioners  by  the  several 
Circuit  Courts  of  the  United  States  to  superintend  the  ship- 
ping and  discharge  of  seamen  engaged  in  merchant  ships 
belonging  to  the  United  States,  and  for  the  further  protection 
of  seamen."     The  very  title  limits  the  action  of  the  shipping 


234  ADMIRALTY  LAW. 

commissioners  to  a  superintendence  of  the  shipment  on  ships 
belonging  to  the  United  States.  Now,  the  onlj  thing  com- 
plained of  here  is  that  there  was  no  such  superintendence. 

But,  again,  section  65  of  the  act  of  1872,  p.  277  (section 
4612  R,  S.),  enacts  that,  within  the  meaning  and  for  the  pur- 
poses of  that  act,  a  "  master  "  is  "  a  person  having  command 
of,"  and  a  "  seaman  "  is  "  a  person  emploj^ed  on  board  of," 
"  a  ship  belonging  to  a  citizen  of  the  United  States." 

I  think,  therefore,  the  internal  structure  of  the  statute  also 
shows  that  it  was  intended  to  operate  only  upon  the  manner 
of  shipping  crews  upon  our  own  vessels. 

The  case  presented  is  of  subjects  of  a  foreign  government 
invoking  the  jurisdiction  of  a  court  of  the  United  States 
against  a  merchant-vessel  of  another  foreign  government. 
Independently  of  the  statute  of  1872,  the  case  is  without  any 
circumstances  which  would  require  or  allow  this  court  to 
entertain  jurisdiction  (see  the  opinion  rendered  by  this  court 
In  re  The  Carolina,  in  April,  1876),  and  that  statute  does  not 
include  this  cause. 

The  decree,  therefore,  will  be  that  the  libel  be  dismissed. 

All  persons  employed  in  the  navigation  of  a  vessel, 
or  upon  a  voyage,  other  than  the  master  and  mates, 
are  deemed  seamen,^  including  cabin-boys,  cooks,'^  stew- 
ards, chambermaids/  carpenters,  coopers,  and  firemen, 
pilots,  surgeon  and  boatswain,*  the  clerk  of  a  steam- 
boat,^ all  on  board  employed  in  the  equipment  or  pres- 
ervation of  the  vessel.^ 

Section  II.  — THEIR  POWER  TO  CONTRACT. 

Mariners  may  contract  and  bind  themselves  to  the 
same  degree  as  any  other  party  on  specific  wages,  and 

1  The  Highlander,  1  Sprague,  588 ;         *  United  States  v.  Thompson,  1 

The  Jane  and  Matilda,  1  Hagg.  Adm.  Sumn.  170. 
187.  6  The  Sultana,  1  Brown,  13. 

a  The  Mentor,  4  Mason,  84.  «  Turner's  Case,  1  Ware,  83, 

'  Gurney  v.  Crockett,  Abb.  Adm. 
490. 


SEAMEN.  235 

for  a  specified  time,  or  for  a  voyage,  or  a  cruise,^  at  a 
specified  rate  of  wages.^ 

Where  no  wages  are  stipulated,  he  may  either  prove 
by  parol  what  wages  were  agreed  on,  or  may,  under  the 
act  of  Congress,  claim  the  highest  rate  payable  at  the 
port  of  shipment,  within  three  months  next  preceding 
the  date  of  the  articles.* 

Tlie  maritime  law,  as  a  general  rule,  requires  sea- 
men's contracts  to  be  in  writing.* 

A  penalty  is  prescribed  by  statute,  for  shipping 
seamen  without  written  articles.  See  Rev.  Stat. 
§  4521. 

For  the  form  of  articles,  see  Rev.  Stat.  §  4612. 

A  voyage  is  a  transit  to  be  performed  by  the  sea- 
men ;  *  it  is  a  technical  phrase,  and  imports  a  definite 
commencement  and  ending. 

For  the  penalty  for  omitting  to  begin  voyage,  see 
Rev.  Stat.  §  4522. 

The  maritime  laws  are  peremptory,  that  the  master 
shall  perform  the  voyage  stipulated  in  the  shipping 
articles,  and  hold  seamen  discharged  of  their  obliga- 
tions to  the  ship  if  he  deviates  from  it.^ 

A  change  of  the  original  voyage  is  a  deviation.^ 

The  contract  of  each  seaman  is  a  distinct  contract, 
although  signed  by  several.* 

It  is  presumed  to  include  the  law  maritime,  except  as 
varied  or  modified  by  express  stipulations;®  and  the 


»  The  Atlantic,  Abb.  Adm.  471 ;  •  The  Martha,  Blatchf.  &  H.  156. 

The  Mona,  1  VV.  Rob.  137.  See  Rev.  Stat.  §  4511. 

*  The     Atlantic,     Abb.     Adm.  •  The  Moslem,  Olcott,  298. 
471.  ^  Moran  r.  Baudin,  2  Pet  Adm. 

*  Montgomery  v.  Tyson,  1  Low.  415. 

131.  •  Oliver   v.    Alexander,   6    Pet. 

*  The  Crusader,   1   Ware,  437.  143. 

See  Rev.  Stat.  §§  4509-4523.  •  The  Crusader,  1  Ware,  437. 


236  ADMIRALTY  LAW. 

court  is  bound  to  give  it  a  construction  most  favorable 
to  the  seamen.^ 

The  owners  cannot  extinguish  the  claim  of  seamen 
for  salvage,  who  have  not  appeared  to  claim  their 
shares,  by  taking  an  assignment  from  them.^ 

Section  III.  —  RIGHT  TO  DAMAGES  AND  WAGES. 

Seamen  are  in  general  entitled  to  recover  damages 
for  an  assault  and  battery  by  the  officers.^ 

A  mate,  succeeding  as  master,  does  not  lose  his 
distinguishing  character  as  mate.* 

A  mate  who  takes  command  of  a  vessel  on  the 
death  of  the  master  is  entitled  to  wages  for  the  entire 
voyage  at  the  contract  price  as  mate.^ 

He  may  sue  in  admiralty  as  mate,  but  at  common  law 
only  for  the  extra  compensation  for  acting  as  master.^ 

Seamen  may  contract  for  "  lays "  or  shares  on  the 
venture.^ 

A  stipulation  for  the  payment  at  a  certain  rate  will 
be  carried  out  according  to  the  intent  of  the  parties.® 

Where  the  articles  provided  for  payment  in  United 
States  currency,  or  its  equivalent  in  gold  at  the  current 
rate  of  exchange,  the  consul  at  a  foreign  port  should 
allow  a  deduction  of  the  difference  between  greenbacks 
and  gold  or  silver,  and  the  cost  of  exchange.® 

When  payable  in  foreign  currency,  they  are  to  be 
paid  in  United  States  gold  coin,  according  to  the  com- 
mercial value  of  the  foreign  currency. ^° 

1  Goodrich  v.   The  Domingo,  1  •  The  Leonidas,  Olcott,  14. 
Sawyer,  185.  "f  The  Atlantic,  Abb.  Adm.  451. 

2  The  Adirondack,  5  Fed.  Rep.  '  Hathaway  v.  Jones,  2  Sprague, 
214.     See  2  Fed.  Rep.  387,  872.  56. 

*  Forbes  v.  Parsons,  Crabbe,  *  Seamen's  Wages,  13  Op.  Atty.- 
283.  Gen.  ,557. 

*  The  George,  1  Sumn.  157.  "  The  Blohm,  1  Ben.  228.     And 

*  The  Fanny  Gardner,  5  Biss.  see  Wages  payable  in  gold,  Rev. 
209.  Stat.  §  4548. 


SEAMEN.  .      237 

Where  the  master  chartered  the  vessel  at  a  fixed 
proportion  of  profits,  and  the  fiict  was  known  to  per- 
sons signing  articles,  or  where  no  articles  were  signed, 
bnt  the  seamen  looked  to  the  master  fi^r  their  wages, 
the  owners  were  not  bound  for  their  wages.^ 

After  abandonment  on  loss  of  the  vessel,  if  accepted, 
the  underwriters,  as  owners,  are  liable  to  the  payment 
of  the  wages  of  the  master  and  crew  for  the  rest  of 
the  voyage.'' 

The  rule  that  freight  is  the  mother  of  wages  is 
abolished.^ 

When  the  voyage  is  broken  up,  interrupted,  or  lost 
by  any  act  of  the  master  or  owner,  seamen  are  entitled 
to  wages  for  the  full  voyage,  or  for  damages  in  the 
nature  of  wages.* 

Where  seamen  are  discharged  in  a  foreign  port,  they 
are  entitled  to  three  months'  wages,  whether  their  dis- 
charge took  place  at  or  before  the  termination  ol  the 
agreement.^ 

When  a  seaman  is  unable  to  do  his  duty  by  reason 
of  sickness,  he  is  entitled  to  his  whole  wages.* 

Where  a  vessel  is  sold  in  a  foreign  country,  the  mas- 
ter must  pay  into  the  hands  of  the  consul  three  months' 
extra  wages  for  the  seamen.^ 

If  a  seaman  be  wrongfully  discharged,'  or  if  he  be 
compelled  to  desert  by  the  cruelty  of  the  master,  he  is 
entitled  to  full  wages.® 

1  Packard  v.  The  Louisa,  2  Woodb.  •  Sims  v.  Jackson,  1  Wash.  C.  C. 
&  M,  48 ;  Matter  of  McLellan,  6  Law.    418. 

Rep.  4i0.  '  Montell  v.  United  States,  Taney, 

2  Hammond  v.  The  R«wex  F.  &  24.  And  see  Rev.  Stat.  §§  4582, 
M.  Ins.  Co.,  4  Mason,  200.  4584.     Hospital  dues,  see  Rev.  Stat. 

*  The  Ocean   Spray,  4  Sawyer,    §§  4586,  4587. 

105.     And  see  Rev.  Stat.  §  4525.  •  The  Jerusalem,  2  Gall.  198. 

*  The  Ocean  Spray,  4  Sawyer,  •  Sherwood  v.  Mcintosh,  1  Ware, 
113.  109.     See  Rev.  Stat.  §  4527. 

*  The  Hermon,  1  Low.  515. 


238  ADMIRALTY  LAW. 

In  case  of  the  death  of  a  seaman  during  the  voyage, 
wages  are  due  up  to  the  time  of  his  decease.^ 

Seamen  are  entitled  to  wages  in  case  of  shipwreck,  if 
by  their  exertions  remnants  of  the  vessel  are  saved,  al- 
though no  freight  be  earned ;  ^  and  notwithstanding  the 
loss  of  the  vessel,  if  a  considerable  part  of  the  cargo  be 
saved.^ 

A  capture,  unless  followed  by  a  condemnation,  does 
not  dissolve  the  contract ;  it  is  merely  suspended,  and 
on  restoration  it  revives.* 

The  navy  ration  is  the  rule  by  which  the  allowance 
to  seamen  should  be  determined.^ 

Double  wages  are  allowed  to  seamen  by  act  of  Con- 
gress, if  the  ship  sails  without  the  quantity  of  pro- 
visions specified  in  the  act.^ 

The  owners  of  the  vessel  are  personally  liable  for  the 
wages  of  the  seamen,  if  the  ship  prove  insufficient  to 
pay  them,^  although  their  names  may  not  be  stated  in 
the  shipping  articles.^ 

A  personal  action  lies  against  the  master  and  owners 
immediately  on  a  discharge  of  seamen,  and  costs  may 
be  awarded,  although  the  action  was  brought  before  the 
ten  days  expired  ;  but  they  may  be  denied  if  the  suit 
appears  vexatious.® 

A  pilot  or  engineer,  imlicensed,  cannot  recover  wages 
for  services  on  a  steam-vessel  engaged  in  carrying  pas- 
sengers on  the  waters  of  the  United  States.^" 

1  Carey  v.  The  Kitty,  Bee,  255.  •  Foster  v.  Sampson,  1  Sprague, 
As  to  effects  of  deceased,  see  Rev.     182. 

Stat.  §§  4538,  45  U.  i  Carey  v.  The  Kitty,  Bee,  255. 

2  The  Massasoit,  1  Sprague,  97.  «  Bronde  v.   Haven,  Gilp.   592. 
'  Weeks  v.  The  Catharina  Maria,    And  see  Admiralty  Rule  13. 

2  Pet.  Adm.  424.  »  The  Susan,  3  Wa^e,  222. 

*  Emerson  v.  Rowland,  1  Mason,  "  The  Maria,  Deady,  132.     And 

45.  see  Revised  Statutes  of  the  United 

6  Sundry  Mariners  r.  The  Wash-  States,  §§  4441,  4442. 
ington,  1  Pet.  Adm.  219. 


SEAMEN.  239 


Section  IV.— LIEN   FOR  WAGES. 

A  mariner  is  not  bound  to  take  any  notice  of  the 
ownership  of  a  vessel,  nor  to  follow  the  estate  of  the 
owner  into  the  probate  court  to  collect  his  wages ;  *  his 
claim  creates  a  lien  on  the  vessel,  the  freight,  and  pro- 
ceeds.* 

It  is  a  personal  privilege,  and  is  not  assignable ;  ^  and, 
if  reduced  to  a  common-law  judgment,  it  cannot  be 
enforced.* 

In  the  case  of  Dennis  Mahony  v.  The  Lillie  Laurie,* 
it  was  held  that  the  claims  of  the  seamen  for  wages 
earned  upon  voyages  subsequent  to  the  date  of  the 
salvage  services  are  entitled  to  priority  of  payment  by 
reason  of  that  fact." 

The  sale  of  the  vessel  by  the  master  cuts  off  the  lien.' 

A  justifiable  sale  divests  all  liens.® 

All  persons  employed  on  a  vessel  to  assist  in  the 
main  purpose  of  the  voyage  are  mariners,  and  included 
under  the  name  of  seamen,'  and  have  a  lien  for  their 
wages.^*' 

Third  persons,  who,  at  the  master's  request,  have  ad- 
vanced the  seamen  wages,  have  the  same  right  of  lien ; " 
but  an  owner  has  not." 

*  The  Fanny  Gardner,  5  Biss.  Surplus  of  the  Ship  Triraountain 
209.  5  Ben.  246;   T^he  Hope,    1   Aspin- 

*  The  Thomas  Jefferson,  10  wall's  Maritime  Law  Cases,  563; 
Wheat.  428.  And  see  Rev.  Stat.  Porter  v.  The  Sea  Witch,  3  Woods, 
§  4535.  75. 

*  Ivogan  V.  The  .Jk)lian,  1  Bond,         ">  The  Amelie,  6  Wall.  18. 
267;  The  Gate  City,  5  Biss.  200.  »  The  Amelie,  6  Wall.  18. 

*  The  Gate   City,   5  Biss.   200;         »  Turner's  Case,  1  Ware,  83. 
Flaherty  v.  Doane,  1  Ix)w.  1.50.  "  The  Ocean  Spray,  4  Sawyer, 

'  Circuit  Court,  Eastern  District  105. 

of    Texas,    Dec.  3,   1880,   Woods,  »  The  W.  F.   Safford,  1  Lush. 

Circuit  Judge.  69. 

*  The  Paragon,    1  Ware,  326;  "  The  Janet  Wilson,  1  Swa.  261. 


240  ADMIRALTY  LAW. 

A  suit  for  wages  cannot  be  maintained  until  the  con- 
tract is  performed  or  released.-^ 

Seamen  may  be  subjected  to  deductions  from  their 
wages  for  neglect  of  their  duty.^ 

Where  the  master  paid  certain  debts  contracted  by 
the  crew,  he  is  entitled  to  have  the  amounts  deducted 
from  their  wages.^ 

A  loss  incurred  by  reason  of  the  crime  of  a  seaman 
may  be  set  off.* 

By  section  4250  of  the  United  States  Revised  Statutes, 
no  canal-boat  without  masts  or  steam-power,  which  is 
required  to  be  registered,  licensed,  or  enrolled  and  li- 
censed, shall  be  subject  to  be  libelled  in  any  of  the 
United  States  courts  for  the  wages  of  any  person  who 
may  be  employed  on  board  thereof,  or  in  navigating  the 
same. 

The  exertions  of  judicial  power  in  defence  of  the 
helpless  have  had  the  approval  not  only  of  Lord  Stow- 
ell,^  but  also  of  Lord  Somers.^  In  the  United  States 
they  have  had  the  high  sanction  of  Chancellor  Kent ' 
and  of  Mr.  Justice  Story .^ 

Section  V.  —  WHO  ARE  MARlIfERS. 

The  term  "  mariner  "  includes  all  persons  employed 
on  board  ships  and  vessels  during  the  voyage,  to  assist 
in  their  navigation  and  preservation,  or  to  promote  the 
purposes  of  the  voyage.  Masters,  mates,  sailors,  sur- 
veyors, carpenters,  coopers,  stewards,  cooks,  cabin-boys, 

1  The  Swallow,  Olcott,  4.  «  Edwards  v.  Child,  2  Vernon, 

2  The  Martha,  Blatchf.  &  H.  157.    727. 

8  The  Coldstream,  4  Sawyer,  172.         '3  Kent  Com.  193. 

*  Thome  v.  White,  1  Pet.  Adm.  ^  Abbott  on  Shipping  (Am.  ed.), 
173.  610,  n. 

5  The  Juliana,  Ogilvie,  2  Dods. 
Adm.  504. 


SEAMEN.  241 

kitchen-boys,  pilots,  firemen,  deck  hands,  waiters,  — 
women  as  well  as  men,  —  are  mariners.^ 

To  constitute  a  mariner,  the  services  rendered  by 
him  must  pertain  to  the  business  of  navigation,  and 
must  be  such  as  are  neces^ry,  or  at  least  conducive,  to 
the  preservation  of  the  vessel,  or  of  those  employed  in 
her  navigation.'* 

No  suit  in  the  admiralty  could  be  maintained  for 
wages  by  persons  hired  and  employed  as  musicians  on 
board  a  vessel.* 

Section  VI.  — NATIONAL  VESSELS. 

The  mariners  of  the  public  vessels  of  the  nation  can- 
not proceed  against  them  in  the  admiralty,  for  the 
reason  that  the  government  or  sovereign  cannot  be 
sued.  It  is  not  because  the  court  has  not  jurisdiction, 
but  because  there  is  no  right  of  action  against  the  gov- 
ernment or  its  property.  In  like  manner,  the  mariners 
of  a  public  vessel  of  a  foreign  power  within  our  juris- 
diction are  not  allowed  to  proceed  against  the  vessel 
or  officers.  This  is  not  because  they  are  simply  for- 
eigners, but  because,  by  the  common  law  and  imiversal 
consent  of  nations,  the  person,  the  ministers,  and  the 
vessels  of  a  sovereign  retain  their  independent  charac- 
ter, and  their  consequent  immunities,  wherever  they 
rightfully  are,  in  times  of  peace.* 

1  Ben.  Adm.  §  278.  •  Trainer  et  al.  v.  The  Superior, 

«  1  Coukling,  108.  Gilp.  514. 

*  Ben.  Adm.  §  279. 


16 


242  ADMIRALTY  LAW. 


CHAPTER    VI. 

MATERIAL-MEN. 
Section  L  — THEIR  LIENS. 

For  the  liens  of  material-men,  see  Chapter  III.,  Sec- 
tion III. 

The  owners  are  prima  facie  liable  for  supplies,^  subject, 
however,  to  rebuttal  by  evidence  of  credit  having  been 
given  to  others.^ 

The  owner  as  well  as  the  master  is  liable  for  repairs.^ 

Section  IL  — WHO  ARE  MATERIAL-MEN. 

Under  this  general  denomination  are  comprised  all 
persons  who  furnish  materials  for  the  building,  equip- 
ment, repair,  outfit,  or  use  of  vessels  employed  in  mari- 
time navigation.* 

Section  IIL  —  CONTRACTS. 

Any  contract  made  to  equip,  fit,  or  furnish  a  vessel 
after  she  is  launched  and  afloat  is  a  maritime  con- 
tract.^ 

Work  done  in  cleaning  and  scraping  the  hull  of  a 
vessel  in  the  dry  dock  is  not  a  maritime  service.^ 

A  contract  to  build  a  vessel  is  not  a  maritime  con- 

1  Skolfield    V.    Potter,   2    Ware  ♦  1  Conkling's  Adm.  73. 
(Dav.),  396.  6  The  Eliza  Ladd,  3  Sawyer,  519. 

2  Macy  V.  De  Wolf,  3  Woodb.  &  «  Bradley  v.  BoUes,  1  Abb.  Adm. 
M.  200.  569. 

«  Webb  V.  Pierce,  1  Curt.  112. 


MATERIAL-MEN.  243 

tract,  for  it  is  a  contract  made  on  land  and  to  be  per- 
formed on  land.^ 

A  contract  to  furnish  the  instruments  or  appurten- 
ances to  manage  or  propel  the  ship  is  not  a  maritime 
contract,  when  they  are  to  be  used  in  the  construction 
thereof.* 

A  contract  by  a  shipwright  to  repair  a  vessel  is  of  a 
maritime  nature,  and  cognizable  in  admiralty.* 

A  person  who  lends  money  for  the  purpose  of  repair- 
ing a  vessel  or  of  furnishing  her  with  supplies,  and 
which  is  actually  employed  for  that  purpose,  is  entitled 
to  the  same  privilege  against  the  ship  as  one  who  actu- 
ally furnishes  the  supplies  or  performs  the  labor.* 

The  admiralty  has  no  jurisdiction  of  an  action  by  a 
broker  or  agent  against  the  owner  to  recover  a  balance 
due  for  moneys  advanced  to  pay  bills  due  by  the  ship 
for  repairs  and  supplies,  for  the  contract  is  not  mari- 
time.* 

A  contract  to  furnish  supplies  to  a  vessel  is  a  mari- 
time contract,  and  cognizable  in  admiralty." 

The  admiralty  has  jurisdiction  over  actions  for  sup- 
plies or  materials  furnished  to  foreign  vessels.^ 

A  party  who  makes  repairs  on  a  vessel  in  her  home 
port,  or  furnishes  materials  or  supplies  to  her,  may 
proceed  against  the  owner  in  personam  in  the  admiralty 
to  recover  the  amount.® 

Admiralty  has  no  jurisdiction  of  an  action  by  a  ship- 

*  People's  Ferry  Co.  v.  Beers,  20  •  Mintum  r.  Maynard,  17  How. 
How.  393  ;  Roach  r.  Chapman,  22    477. 

How.  129;   Edwards  r.  Elliott,  21  «  Zane  p.  The  President,  4  Wash. 

Wall.  532.  C.  C.  458. 

•  Edwards  v.  Elliott,  21  WaU.  »  The  Sandwich,  1  Pet.  Adm.  233. 
632.  «  Reppert  t.   Robinson,    Taney, 

•  Peyroux  v.  Howard,  7  Pet.  324;  492;  The  General  Smith,  4  Wheat 
The  St.  Lawrence,  1  Black,  522.  438;   Peyroux  v.   Howard,   7  Pet 

*  Davis  c.  ChUd,  2  Ware,  78.  824. 


244  ADMIRALTY  LAW. 

wrifjht  to  recover  for  services  in  building  a  new  boat 
on  which  some  of  the  materials  from  an  old  dismantled 
boat  have  been  iised.^ 

Supplies  furnished  in  one  State  to  a  vessel  belonging 
to  another  State  are  furnished  to  a  foreign  vessel  lying- 
in  a  foreign  jurisdiction,  the  different  States  being  for 
this  purpose  held  foreign  to  each  other.^ 

A  proceeding  in  rem  cannot  be  maintained  in  admi- 
ralty for  repairs  or  supplies  furnished  to  a  vessel  in  her 
home  port,  unless  the  laws  of  the  State  give  a  lien 
therefor.^ 

Section  IV.— SUITS  BY  MATERIAL-MEJT. 

By  the  twelfth  Admiralty  Rule  of  the  United  States 
Supreme  Court,  as  promulgated  May  6,  1872,  in  all 
suits  by  material-men  for  supplies  or  repairs,  or  other 
necessaries,  the  libellant  may  proceed  against  the  ship 
and  freight  in  rem,  or  against  the  master,  or  owner, 
alone  in  personam. 

The  claims  of  seamen  for  wages,  and  of  material-men 
for  supplies,  where  the  parties  were  innocent  of  all 
knowledge  of,  or  participation  in,  the  illegal  voyage, 
preferred  to  the  claim  of  forfeiture  on  the  part  of  the 
government.* 

In  the  case  of  The  Brig  Nestor,^  Judge  Story  said  : 
*'  If  the  libellant  has  given  an  exclusive  personal  credit 
to  the  master,  he  cannot  afterwards,  upon  any  change 
of  circumstances  or  opinion,  resort  to  the  ship,  or  shift 
the  responsibility  over  upon  the  owner.     But  prima  facie 

1  Smith  V.  The  Royal  George,  1         »  The  Lottawana,  21  WalL  558. 
Wooda,  290.  *  The    St.     Jago    de    Cuba,    9 

»  The    Chusan,    2    Story,    455;  Wheat.  110. 
"\Miitlock  V.  The  Thales,  20  How.         ^  1  Sumn.  75. 
It.  447. 


MATERIAL-MEN.  245 

the  supplies  of  material-men  to  a  foreign  ship  — that  is, 
to  a  ship  belonging,  or  represented  to  belong,  to  owners 
resident  in  another  State  or  country  —  are  to  be  deemed 
to  be  furnished  on  the  credit  of  the  ship  and  the  own- 
ers, until  the  contrary  is  proved." 

A  suit  in  personam  against  the  owner  of  a  vessel  for 
supplies  cannot  be  maintained  in  the  admiralty,  where 
the  owner  gave  a  negotiable  promissory  note  for  the 
debt,  which  has  not  been  given  up  or  tendered  at  the 
hearing.^ 

The  giving  credit  for  a  fixed  time  for  the  supplies 
does  not  extinguish  the  lien  for  the  supplies ;  nor  the 
allowing  the  ship  to  depart  from  the  port  on  her  voy- 
age without  payment.^ 

*  Ramsay  v.  Allegre,  12  Wheat.         *  The  Brig  Nestor,  1  Sumn.  73. 
395. 


246  ADMIRALTY  LAW. 


CHAPTER  Vn. 

OF    PRACTICE    AND    PLEADING. 
Sectiox  L  —  PROCEEDINGS  TO  RECOVER. 

There  is  no  rule  in  the  United  States  as  regards 
admiralty  practice,  such  as  Rule  90  of  the  United 
States  Supreme  court  for  the  courts  of  equity  in  the 
United  States,  which  adopts  the  practice  of  the  High 
Court  of  Chancery  in  England  as  furnishing  just  analo- 
gies to  regulate  the  practice  where  the  rules  prescribed 
by  the  Supreme  Court  or  by  the  Circuit  Court  do  not 
apply. 

After  a  judgment  has  been  rendered  in  favor  of  a 
party  having  a  claim  upon  the  residuum  in  the  regis- 
try, it  is  brought  to  the  notice  of  the  court  that  an 
equitable  action  of  nullity  has  been  instituted  in  a 
State  court  to  annul  the  transfer  by  which  said  party 
held  title  to  the  claim,  on  the  ground  of  fraud  and 
simulation,  the  court  of  admiralty  will  order  the  pro- 
ceedings in  execution  of  its  judgment  to  pause  imtil 
the  termination  of  the  suit  in  equity  in  the  State 
court.^ 

The  right  of  recovery  in  salvage  cases  is  a  mere 
right  to  proceed  against  the  thing  saved,  and  not  •  a 
personal  claim  against  the  owner,  unless  he  has,  by 
taking  possession,  thereby  rendered  himself  personally 
liable  for  the  reward.'^ 

1  The  Albert   Schultz,  12  Fed.    Hornor,  Esq.,  of  the  New  Orleans 
Rep.   150,  by  Billings,  D.  J,  April    Bar). 
11,   1882   (reported  by  Joseph  P.         »  xi^e    Independence,    2    Curt. 


PRACTICE  AND  PLEADING.  247 

There  is  no  precedent  for  a  suit  in  a  common-law 
court  for  salvage  on  the  high  seas ;  ^  no  action  lies  at 
law*  unless  the  salvor  can  prove  a  contract  with  the 
owner  or  agent.'' 

An  action  cannot  be  maintained  against  the  master, 
unless  it  was  for  his  benefit.* 

Proceedings  to  recover.  —  Salvage  proceedings  may  as 
well  be  by  proceedings  in  personam  as  by  proceedings 
in  rem.^ 

Any  person  having  an  interest  in  the  property  pro- 
ceeded against  may  appear  and  defend.  Mortgagees  ^ 
of  a  ship,  assignees  of  a  bankrupt  owner,^  underwriters 
who  had  accepted  the  abandonment  of  insured  prop- 
erty,' and  seamen  whose  wages  might  be  affected  by 
the  proceedings,  have  been  held  entitled  to  appear.® 

Persons  whose  interest  is  merely  collateral,  and  who 
have  no  interest  in  the  subject-matter  of  the  proceed- 
ings, are  not  allowed  to  intervene.® 

An  action  will  not  lie  for  the  salvage  of  goods  on 
land  ;  ^^  but  compensation  may  be  obtained  for  ser- 
vices rendered  within  the  ebb  and  flow  of  the  tide, 
without  regard  to  location,  whether  on  the  high  seas 
or  inter  fauces  terrce}^ 

356;  The  Emblem,  2  Ware,  61;  The  •  The  JuHnder,  1  Spinks.  71. 

Centurion,  1  Ware,  479  ;   The   Tre-  •  The  Dowthorpe,  2  W.  Rob.  73. 

lawney,  3  C  Rob.  216;  The  Hope,  ^  The  Regina  del  Mare,  B.  &  L. 

3  W.  Rob.  215.  315;  The  Cargo  ex  Galam,  B.  &  L. 

*  Brevoor  v.  The  Fair  American,  167. 

1  Pet.  Adra.  187.  •  The  Union,  Lush.  128. 

«  Lipson  r.  Harrison,  24  Eng.  L.  •  The  KiUarney,  Lush.  427;  The 

&  Eq.  208.  Dowthorpe,  ubi  supra.     As  to  the 

*  Miller  v.  Kelly,  Abb.  Adm.  practice  where  there  are  several 
564.  claimants,  see  The  Clara,  Swa.  1; 

*  The  Boston,  1  Sumn.  329;  The  The  William  Hull,  Lush.  25. 
Trelawney,   3    C.    Rob.    216;   The  "  Ez;)arte  Cahoone,  2  Ma.son,  88; 
Hope,   3   C.    Rob.   215;   Harley  p.  Nicholson  u.  Chapman,  2  II.  Black. 
Gawley,  2  Sawyer,  10 ;  The  Louisa  254. 

Jane,  2  Low.  295.  ^  The  Johu  Gilpin,  Olcott,  82; 


248  ADMIRALTY  LAW. 

4 

The  pendency  of  one  suit  for  salvage  is  not  a  bar  to 
another  suit  by  other  salvors  for  other  services.^ 

That  the  libellants  would  not  refer  their  claim  for 
salvage,  as  agreed,  is  no  bar  to  the  suit ;  ^  and,  if  sepa- 
rate libels  are  filed,  they  may  be  consolidated  by  the 
court  for  its  own  convenience.^ 

The  more  recent  practice  has  been  not  to  force  con- 
solidation, where  the  parties  object  to  it,  and  maintain 
that  their  interests  are  different.  See  The  Jacob  Land- 
strom.  The  Law  Reports,  Probate  Division,  vol.  iv.  p. 
193  (Dec.  17,  1878). 

Where  several  actions  are  consolidated,  the  costs  in 
each  action  will  be  taxed  up  to  the  time  of  consolidation. 
After  that  time  only  one  suit  will  be  recognized,  and 
a  single  bill  of  costs  allowed  to  the  prevailing  party.* 

It  is  the  duty  of  the  salvors,  on  bringing  suits,  to 
make  all  co-salvors  parties,  that  one  final  decree  may  be 
hadj^  but  they  are  not  deprived  of  their  remedy  because 
other  salvors  will  not  join ;  *  they  may  petition  the  court 
for  compensation  out  of  the  funds  in  the  registry.' 

The  interest  of  co-salvors  is  several,  and  seamen 
may  bring  actions  against  the  master  for  their  shares,^ 

They  may  bring  action  against  the  property  saved, 
if  settlement  was  made  with  the  master  without  their 
consent.' 

The  Emulous,  1  Sumn.  210;  Ameri-         *  Simpson  v.  Caulkins,  1  Abb. 

can  Insurance  Co.  v.  Coster,  3  Paige,  Adm.  539. 

323;  Hobart».  Drogan,  lOPet.  108;         «  The   Hessian  v.   The  Edward 

United  States  v.  Coombs,  12  Pet.  72.  Howard,  Newb.  522;  The  Boston,  1 

1  The  Merrimac,  1  Ben.  68.  Sumn.  328. 

2  Coffin  V.  The  John  Shaw,  1  «  The  Blackwall,  10  Wall.  12; 
Cliff.  230.  Evans  v.  The  Charles,  Newb.  329. 

8  Riche.  Lambert,  12  How.  347;         '  The  Blackwall,   10  Wall.   12; 

The  London  Merchant,  3  Hagg.  The  Henry  Ewbank,  1  Suran.  400. 
Adm.  394;  U.  S.  Rev.  Stat.  §§  921-  »  The  Centurion,  1  Ware,  477. 
978;  United  States  v.  Union  Pacific         »  The  Britain,   1  W.   Rob.  40; 

R.  R.  Co.,  98  U.  S.  569.  The  Sarah  Jane,  2  W.  Rob.  110. 


PRACTICE  AND  PLEADING.  249 

A  foreign  consul  may  petition  for  the  payment  into 
the  registry  of  the  proceeds  of  a  sale  of  property 
libelled  for  salvage,  where  absent  citizens  of  his  coun- 
try are  interested.^ 

A  purchaser  of  a  ship  liable  to  be  restored  after 
capture  cannot  bring  a  claim  for  salvage.'^ 

A  delay  to  enforce  a  maritime  lien,  after  a  reason- 
able opportunity  to  do  so,  should  be  deemed  a  waiver 
of  the  lien,  as  against  subsequent  purchasers  or  in- 
cumbrancers, in  good  faith  and  without  notice,  unless 
such  delay  is  satisfactorily  explained.^ 

Notwithstanding  Admiralty  Rules  54-57,  the  owner 
of  a  vessel  may  institute  appropriate  proceedings  in  a 
court  of  competent  jurisdiction  to  obtain  the  benefit  of 
the  limitation  of  liability  provided  for  by  sections  4284 
and  4285  of  the  Revised  Statutes,  without  waiting  for 
a  suit  to  be  begun  against  him  or  his  vessel  for  the 
loss  out  of  which  his  liability  arises.* 

This  is  not  available,  except  in  actions  in  the  courts 
of  the  United  States  under  the  statute.'* 

The  practice  of  the  court  does  not  authorize  the  dis- 
missal of  a  libel  for  the  libellant's  delay  in  bringing  the 
cause  to  a  hearing  after  issue  joined.  The  claimant 
has  an  equal  right  to  move  the  case.® 


1  The  Adolph,  1  Curt.  89;  Rowe  Charles  Carter,  4  Cranch,  328;  The 

V.  Brijr ,  1  Mason,  372;  The  In-  Utility,   1  Blatchf.  &  H.  218;   The 

vincible,  1  Wheat.  2.18;  The  Ann,  Lillie  Mills,  1    Sprague,  367;   The 

3  Wheat.  435;  The  Divina  Pastora,  Chusan,  2  Story  C.  Ct.  456,   468; 

4  Wheat.  52;  The  Bee,  1  Ware,  335;  The  Buckeye  State,    1    Newb.   11; 
The  Henry  Ewbank,  1  Sumn.  400;  The  Lauretta,  9  Fed.  Rep.  622. 
The  Bello  Corrunes,  6  Wheat.  152.  *  Ex  parte  Slayton,  S.  C.  U.  S., 

*  Conlon  r.  The  Neptune,  2  Pet.  October    Term,    isSl ;     Am.    Law 

Adm.  358;  Warder  v.  La  Belle  Cre-  Reg.  August,  1882,  vol.  xxl.  No.  8, 

ole,  1  Pet.  Adm.  31.  p.  543. 

«  In  re  Dubuque,  2  Abb.  (U.  8.)         •  Abbott's  Trial  Evidence,  676 

S3.     See    Packard  v.  The    Louisa,  (New  York,  1882). 
2  Woodb.  &  M.  48;  Blaine  v.  The         •  The  Mariel,  0  Fed.  Rep.  831. 


250  ADMIRALTY  LAW. 

While  the  admiralty  courts  are  not  governed  by  any 
statute  of  limitations,  they  adopt  the  principle  that 
laches  or  delay  in  the  judicial  enforcement  of  maritime 
liens  will,  under  proper  circumstances,  constitute  a  valid 
defence. 

When  an  admiralty  lien  is  to  be  enforced  to  the 
detriment  of  a  purchaser  for  value,  without  notice  of 
the  lien,  the  defence  will  be  held  valid  under  shorter 
time  and  a  more  rigid  scrutiny  of  the  delay  than  where 
the  claimant  is  the  party  who  owned  the  property  when 
the  lien  accrued.^ 

The  arrest  of  a  vessel  after  her  voyage  is  commenced 
is  illegal,  and  will  be  discharged.^ 

On  a  petition  for  a  writ  of  prohibition  to  the  District 
Court  proceeding  as  a  court  of  admiralty  and  maritime 
jurisdiction,  matters  dehors  the  record,  which  are  set  forth 
in  the  petition  for  the  writ,  cannot  be  considered  here.^ 

For  further  as  to  prohibition  and  mandamus,  see  Fed- 
eral Practice,  by  Field  &  Miller,  203,  204  ;  Bump's 
Federal  Procedure,  276-281 ;  Desty's  Federal  Proced- 
ure, p.  92,  §  688,  and  the  cases  there  cited  ;  Myer's 
Index  to  the  Reports  of  the  Supreme  Court  of  the 
United  States,  "  Writ  of  Prohibition,"  p.  535,  and  his 
pages  290-294,  for  ^^ Mandamus  -/'  and  Rapalje's  Digest 
of  Federal  Decisions  and  Statutes  for  mandamus,  pp. 
349,  350,  and  for  prohibition,  p.  605. 

Where  "  The  H.  W."  instituted  a  cause  of  damage  in 
rem  in  Ireland  for  collision  against  "  The  C.  C,"  and 
caused  her  to  be  arrested  in  Ireland,  "  The  C.  C."  ob- 
tained her  release  on  bail,  and  instituted  a  cross-suit 
against  «  The  H.  W." 

1  The  Key  City,  14  Wall.  653.        vii.  284,   Boston,   1879;  24  Moak's 

2  Boysson  ».  Carlberg  (House  of    Notes,  847,  848. 

Lords,  July  9,  1878),  L.   R.   3  Ap.         s  Ex  parte    Easton,    95    U.    S. 
Cas.  1316,  1322 ;  The  Reporter,  vol.     (5  Otto)  68. 


PRACTICE  AND  PLEADING.  251 

Subsequently  "  The  C.  C."  was  arrested  in  England 
at  the  suit  of  the  owners  of  "  The  H.  W.,"  in  respect  of 
the  same  collision. 

The  court  ordered  the  vessel  to  be  released  and  all 
proceedings  to  be  stayed.^ 

Interest  on  a  salvage  award  is  recoverable  from  the 
date  of  the  judgment.'^ 

After  the  payment  of  salvage  by  a  surety  in  a  stipu- 
lation bond,  if  the  owner  of  the  goods  claims  and  re- 
ceives for  the  loss  as  ascertained  by  the  decree,  or 
directs  payment  to  be  made,  it  is  a  presumption  of 
satisfaction  on  the  adjustment  of  average.^ 

The  court  may  determine  to  whom  the  residue  of 
the  property  shall  be  delivered,  and  may  decide  whether 
a  capture  by  a  foreign  nation  is  valid.* 

Salvage  was  awarded  in  a  case  where  both  vessels 
belonged  to  the  same  owner.^ 

A  claim  for  salvage  may  be  maintained  in  a  court  of 
admiralty,  if  there  is  no  local  custom  making  the  service 
gratuitous.* 

Section  II.  — FORMS  AND  MODES   OF  PROCEEDING. 

By  the  Revised  Statutes  of  the  United  States,  §  913, 
it  is  provided  that  — 

The  forms  of  mesne  process,  and  the  forms  and  modes  of 
proceeding  in  suits  of  equity  and  of  admiralty  and  maritime 
jurisdiction  in  the  Circuit  and  District  Courts,  shall  be  ac- 

^  The  Catt«rina  Chiazzar,   1  P.  RobinRon  r.  George's  Insurance  Co., 

D.    368;    2    Law   Reports    Digest,  17  Me.  13L 

ISfJo  to  1880   (London,   1882),   p.         «  McDonough  v.  Dannery,  3  Dall. 

2915.  188. 

«  The  Jones  Brothers,  46  L.  J.         »  P.  M.  S.  S.  Co.  r.   Bales  of 

Adra.    Div.    75;    Fisher's    Annual  Gunny  Bags.  3  Sawyer,  187. 
Digest  (Tendon,  1878),  p.  377.  •  Fifty  Thousand  Feet  of  Tim- 

»  Eckford  r.  Wood,  5  Ala.  136 ;  ber,  2  Low.  64. 


252        '  ADMIRALTY  LAW. 

cording  to  the  principles,  rules,  and  usages  which  belong  to 
courts  of  equity  and  of  admiralty,  respectively,  except  when 
it  is  otherwise  provided  by  statute  or  by  rules  of  court  made 
in  pursuance  thereof ;  but  the  same  shall  be  subject  to  alter- 
ation and  addition  by  the  said  courts,  respectively,  and  to 
regulation  by  the  Supreme  Court,  by  rules  prescribed  from 
time  to  time,  to  any  Circuit  or  District  Court,  not  incon- 
sistent with  the  laws  of  the  United  States. 

For  the  construction  of  this  section  913  see  the  fol- 
lowing :  Independent  of  State  legislation ;  ^  forms  and 
modes  of  process,^  of  procedure ;  ^  rules  of  pleading,* 
of  practice.^ 

Bj  the  Revised  Statutes  of  the  United  States,  §  917, 
it  is  provided  that  — 

The  Supreme  Court  shall  have  power  to  prescribe,  from 
time  to  time,  and  in  any  manner  not  inconsistent  with  any 
law  of  the  United  States,  the  forms  of  writs  and  other  process, 
the  modes  of  framing  and  filing  proceedings  and  pleadings,  of 
taking  and  obtaining  evidence,  of  obtaining  discovery,  of  pro- 
ceeding to  obtain  relief,  of  drawing  up,  entering,  and  enrolling 
decrees,  and  of  proceeding  before  trustees  appointed  by  the 
court,  and  generally  to  regulate  the  whole  practice,  to  be 
used,  in  suits  in  equity  or  admiralty,  by  the  Circuit  and  Dis- 
trict Courts.^ 

By  the  Revised  Statutes  of  the  United  States,  §  918, 
it  is  provided  that  — 

1  Wayman  v.  Southard,  10  *  Duncan  v  United  States,  7 
Wheat.    1;   Beers   v.   Haughton,  9    Pet.  435. 

Pet.   359;    The  Delaware,    Olcott,  «  Wayman     v.     Southard,     10 

240.  Wheat.  1 ;  Poultney  v  City  of  La- 

2  Grayson  v.  Virginia,  3  Dall.  fayette,  12  Pet.  472,  The  Steamer 
320;  Bank  of  United  States  v.  Hal-  St.  Lawrence,  1  Black,  522;  Noonan 
stead,  10  Wheat.  51.  v.  Lee,  2  Black,   509;  Goodyear   r. 

8  Manro  v.  Almeida,  10  Wheat.  Providence  Rubber  Co.,  2  Cliff.  351; 

473;   Ex  parte   Crane,  5  Pet.  210;  Gray  v.   Chicago,    &c.    R.    R.    Co., 

Harrison  v.  Nixon,  9  Pet.  507.  Wool.   63 ;   Jenkins   v.   Greenwald, 

*  McKinlay  et  al.  v.  Morrish  et  1  Bond,   126;   Gaines  v.  Travis,  1 

al,  21  How.  343.  Abb.  Adm.  422. 


PRACTICE  AND  PLEADING.  253 

The  several  Circuit  and  District  Courts  may,  from  time  to 
time,  and  in  any  manner  not  inconsistent  with  any  law  of  the 
United  States,  or  with  any  rule  prescribed  by  the  Supreme 
Court  under  the  preceding  section,  make  rules  and  orders 
directing  the  returning  of  writs  and  processes,  the  filing  of 
pleadings,  the  taking  of  rules,  the  entering  and  making  up 
of  judgments  by  default,  and  other  matters  in  vacation,  and 
otherwise  regulate  their  own  practice  as  ma}'  be  necessary  or 
convenient  for  the  advancement  of  justice  and  the  prevention 
of  delays  in  proceedings.^ 


Section  m.  —  PLEADING. 

A  suit  in  the  court  of  admiralty  may  be  either  in  per- 
sonam or  in  rem.  Salvage  suits  are  almost  invariably  of 
the  latter  class. 

The  case  is  commenced  in  the  courts  of  the  United 
States,  not  by  filing  in  the  registry  of  the  court  the 
praecipe  to  institute,  as  in  England,  but  by  filing  a  libel 
in  the  clerk's  office.  By  Rule  1  of  the  United  States 
courts  in  admiralty  no  mesne  process  shall  issue  until 
the  libel  is  filed  in  the  clerk's  office.  See  Appendix, 
and  authority  there  cited. 

What  the  libel  should  state,  how  it  shall  propound 
the  allegations,  the  prayer,  and  interrogatories,  may 
be  seen  by  reference  to  Rule  23  in  Admiralty.  See 
Appendix,  and  authorities  there  cited. 

Against  what  and  whom  suits  for  salvage  may  be  in- 
stituted, see  Appendix,  Admiralty  Rule  19,  and  the 
following  decisions. 

»  Bank  of  United  States  v.  Wheat.  43;  Mills  r.  Bank  United 
White,  8  Pet.  202;  Beers  v.  Ilaugh-  States,  11  Wheat.  431 ;  The  Steamer 
ton,  9  Pet.  329;  Poultney  r.  City  of  St.  Lawrence,  1  Black,  522;  Louis- 
Lafayette,  12  Pet  472;  Philadel-  iana  Insurance  Co.  v.  Nicholson, 
phia,  &c.  R.  R.  r.  Stimpson,  14  2  Low.  810. 
Pet.  448;   Wayman  r   Southard,  10 


254  ADMIRALTY  LAW. 

As  to  joinder  of  proceedings,  the  nineteenth  Admi- 
ralty Rule  was  intended  to  prevent  a  joinder  of  pro- 
ceedings in  rem  and  in  personam,  in  the  same  libel  for  the 
salvage  of  the  same  goods.^ 

This  decision  of  the  Circuit  Court  affirmed  the  de- 
cision of  the  judge  of  the  United  States  Court  for  the 
District  of  Louisiana,  and  was  affirmed  by  the  Supreme 
Court  in  The  Sabine,  11  Otto,  101. 

As  only  exceptional  provision  is  made  by  the  Su- 
preme Court  rules  in  admiralty  for  a  joint  libel, 
the  general  rule  that  proceedings  in  rem  and  in  per- 
sonam cannot  be  joined  in  the  same  libel  must  be 
considered  as  receiving  the  sanction  of  the  Supreme 
Court.2 

As  to  joinder  by  libellants,  all  persons  entitled  on 
the  same  state  of  facts  to  participate  in  the  same  relief 
may  join  as  libellants,  whether  the  suit  be  in  personam 
or  in  rem? 

Misjoinder  of  parties  libellant,  when  not  objected 
to,  will  not  prevent  a  decree.* 

The  pleadings  in  the  United  States  District  Court 
consist  of  the  libel,  claim,  answer,  exception,  and  cross- 
libel. 

By  Admiralty  Rule  51  no  replication  is  allowed.  I 
have  therefore  furnished  no  form  of  it. 

Stipulation.  —  For  the  practice,  release  upon  stipula- 
tion without  formal  claim,  neglect  to  name  owners, 
liability  of  stipulators,  sufficiency  of  answers,  authority 


1  Nott  V.  The  Steamboat  Sabine         «  Fretz  v.  Bull,  12  How.  463. 
and  Cargo,  2  Woods,  211,  by  Brad-         *  Coast  Wrecking  Co.  v.  Phoenix 
ley.  Circuit  Justice.  Insurance    Co.,   7   Fed.    Rep.   236 

2  Ferris  v.  Steam-tug  Alida,  The  (1881). 
Reporter,  vol.  xiii.  No.  22,  p.  677 
(Boston,  1882). 


PRACTICE  AND  PLEADING.  255 

of  consignee  or  agent,  see  Todd  v.  Bark  Tulchen,  2 
Fed.  Rep.  600. 

For  the  form  of  a  stipulation  for  costs,  and  affidavit 
of  surety,  see  Appendix. 

The  surety  must  justify  by  affidavit. 

The  stipulation  may  be  acknowledged  before  the 
judge,  the  clerk,  or  a  United  States  commissioner. 
When  the  libel  and  stipulation  are  filed  with  the  clerk, 
he  issues  admiralty  process. 

The  process  here  spoken  of  is  a  warrant,  when  the 
libel  is  in  rem  to  arrest  the  res. 

When  the  res  is  arrested,  the  marshal  publishes  a  mo- 
nition ;  for  the  form  of  which  see  Appendix. 

The  party  who  wishes  to  release  the  property  must, 
by  Rule  26  in  Admiralty,  file  a  sworn  claim ;  for  the 
form  of  which  see  Appendix,  and  authority  there 
cited. 

For  bonds  or  stipulations,  see  Admiralty  Rule  5, 
Appendix,  and  authorities  there  cited. 

As  to  bailing  property  in  vacation,  see  United  States 
Revised  Statutes,  §  940,  Appendix. 

For  stay  of  execution,  or  discharge  of  property  on 
delivery  bond,  where  the  amount  claimed  is  stated  in 
the  libel,  see  United  States  Revised  Statutes,  §  941, 
Appendix. 

By  Admiralty  Rule  10  of  the  United  States  Supreme 
Court,  perishable  goods  may  be  sold  or  delivered  to 
claimant  on  the  terms  presented  by  that  rule.  See 
Appendix,  and  authorities  there  cited. 

In  like  manner  a  ship  may  be  delivered  to  claimant 
on  complying  with  the  requirements  of  Rule  11  of  the 
United  States  Supreme  Court  in  Admiralty,  or  a  sale 
may  be  ordered.  See  Appendix,  Admiralty  Rule  11, 
and  authorities  there  cited. 


256  ADMIRALTY  LAW. 

The  default  or  failure  to  answer  is  regulated  by 
Admiralty  Rule  29.  See  Appendix,  and  authority 
there  cited. 

But  before  the  return-day  the  defendant  should  file 
his  claim  and  answer,  or  exceptions,  made  and  verified 
as  required  by  Admiralty  Rule  27.  See  Appendix, 
and  authorities  there  cited. 

As  to  what  allegations  need  not  be  answered,  see 
Admiralty  Rule  31,  Appendix. 

Exceptions  to  the  libel  may  be  taken  under  Admi- 
ralty Rule  36.  See  Appendix,  and  authorities  there 
cited. 

If  exceptions  to  a  libel  are  not  brought  to  the  atten- 
tion of  the  Circuit  Court,  nor  referred  to,  either  ex- 
pressly or  by  implication,  in  the  appeal,  they  will  be 
deemed  to  be  conclusively  waived  by  the  respondent 
when  he  is  the  appellant.  To  consider  them  would  be 
to  exercise  the  appellate  power  in  reviewing  the  action, 
not  of  the  Circuit,  but  of  the  District  Court.  This  can- 
not be  done.^ 

If  no  exception  is  taken  to  the  report  of  a  commis- 
sioner, which  is  duly  confirmed  by  the  Circuit  Court, 
the  matter  is  not  open  for  review,  there  being  nothing 
on  its  face  impeaching  its  correctness.^ 

As  to  non-appearance  of  libellant  and  dismissal  of  his 
suit,  see  Admiralty  Rule  39,  Appendix. 

By  Rule  53  of  the  United  States  Supreme  Court  in 
Admiralty  (December  Tenn,  1868,  7  Wall,  v)  cross- 
libels  may  be  filed  on  any  counterclaim. 

For  the  effect  of  cross-libels,  see  said  Rule  53,  in  the 
Appendix. 

Upon  a  libel  in  rem^  filed  for  damages  caused  by  a 

1  The  Vaughan,  14  Wall.  258.        Vanderbilt,  6  Wall.  225;  Jennings 

2  The  Virgin,  8  Pet,  538;  The    v.  The  Perseverance,  3  Dall.  336. 


PRACTICE  AND  PLEADING.  257 

collision,  a  cross-libel  cannot  be  sustained  for  salvage 
on  account  of  services  rendered  to  the  injured  vessel 
after  the  collision.  Such  a  claim  does  not  arise  out  of 
the  cause  of  action  on  which  the  libel  is  founded, 
within  the  meaning  of  the  fifty-third  rule.^ 

The  decree  of  a  District  Court,  dismissing  a  cross- 
libel  for  want  of  merit,  from  which  no  appeal  was 
taken,  determines  the  question  raised  by  such  cross- 
libel,  but  does  not  dispose  of  the  issue  of  law  or  fact 
involved  in  the  original  suit.^ 

Where  a  libel  was  filed  against  a  steamer  by  a  barque, 
and  the  owners  of  the  steamer  filed  a  cross-libel  against 
the  barque,  and  moved  to  stay  proceedings  in  the  suit 
under  the  first  libel  until  security  was  given  on  the 
cross-libel,  no  process  having  been  issued  on  the  cross- 
libel,  it  was  held  that  the  Supreme  Court  did  not  in- 
tend by  this  rule  to  give  the  court  jurisdiction  of  the 
second  libel  without  a  seizure  of  the  barque  within  the 
district,  but  that  the  object  of  that  rule  is  to  compel 
appearance,  and  giving  security  by  a  respondent  in  a 
cross-libel  in  pei'sonam,  in  causes  where  it  does  not  ap- 
pear proper  to  relieve  him.^ 

The  fifty-third  Rule  in  Admiralty,  requiring  the  re- 
spondents in  a  cross-libel  to  give  security  to  respond  in 
damages  jis  claimed  in  the  cross-libel,  applies  as  well 
to  actions  in  rem  as  to  those  in  personam.^ 

When  Claims  do  not  arise  from  same  Cause  of  Action.  — 
Upon  a  libel  in  rem,  filed  for  damages  caused  by  a  col- 
lision, a  cross-libel  cannot  be  sustained  for  salvage  on 

»  Crowell  V.   Schooner    Theresa  »  The  Bristol,  4  Ben.   55.    And 

Wolf,  4  Fed.   Rep.  1.52(1880),  re-  see  The    Sapphire,    18   Wall.   51; 

ported  by  Frank  P.  Prichard,  Esq.,  Ward  el  al.  v.  Chamberlain  et  al.,  21 

of  the  Philadelphia  Bar.  How.  572. 

«  The  Dove,  91  U.  S.  (1  Otto)  *  The  Toledo,  1  Brown  Adm.  & 

381.  Rev.  Cases,  445. 

17 


258  ADMIRALTY  LAW. 

account  of  services  rendered  to  the  injured  vessel  after 
the  collision.  Such  a  claim  does  not  arise  out  of  the 
cause  of  action  on  which  the  libel  is  founded,  within 
the  meaning  of  the  fifty-third  Admiralty  Rule. 

It  is  not  the  office  of  a  cross-libel  to  enforce  a  new 
subject-matter  introduced  into  the  litigation  by  stran- 
gers to  the  original  suit,  and  thus  create  a  new  lia- 
bility.i 

Libellant  may  except  to  the  answer,  as  provided  by 
Admiralty  Rule  28  of  the  United  States  Supreme  Court. 
See  Appendix,  and  authority  there  cited. 

Amendments  are  regulated  by  Rule  24  of  the  United 
States  Supreme  Court  in  Admiralty.  See  Appendix, 
and  authorities  there  cited. 

I  cannot  "  condense  this  book  into  an  easily  portable 
and  purchasable  compass  "  (as  I  state  in  my  Introduc- 
tion) if  I  quote  all  the  decisions  which  I  have  collected. 
Therefore,  for  the  authority  as  to  amendments  be- 
yond what  I  cite  in  the  Appendix,  I  refer  the  reader  to 
an  elaborate  work  on  Federal  Procedure,  by  Orlando 
F.  Bump,  Baltimore,  1881,  at  pp.  667-669,  673,  674. 

We  may  refer  to  the  following  decisions  as  to  plead- 
ings :  — 

The  pleadings  in  admiralty  are  more  simple  and  less 
technical  than  in  a  court  of  common  law.^ 

In  all  admiralty  proceedings  the  decree  must  be 
secundum  aUegaia  et  probata.^ 

Such  also  is  the  English  rule.  The  court  will  insist 
upon  an  adherence  to  the  rule  proceeding  secundum 
allegata  et  probata,  and  a  party  who  fails  to  establish  the 
case  set  up  in  his  pleading  will  not  be  allowed  to  take 

1  The  Ping-On  v.  Blethen  and  mours  &  Co.  v.  Vance  et  al.,  19 
Others,  11  Fed.  Rep.  607  (1882).  How.  162. 

2  West  V.  Steamer  Uncle  Sam,  *  The  Schoon*r  Boston  and 
1  McAllister,  505;  Dupont  de  Ne-  Cargo,  1  Sumn.  331. 


PRACTICE  AND  PLEADING.  259 

the  benefit  of  another  state  of  facts,  which  may  turn  up 
on  the  evidence.^ 

In  Dupont  de  Nemours  &  Co.  v.  Vance  et  al}  the 
court  said  :  — 

The  rules  of  pleading  in  the  admiralty  are  exceedingly 
simple  and  free  from  technical  requirements.  It  is  incum- 
bent on  the  lihellant  to  propound  with  distinctness  the  sub- 
stantive facts  on  which  he  relies  ;  to  pray,  either  specially  or 
generally,  for  the  relief  appropriate  to  them  ;  and  to  ask  for 
such  process  of  the  court  as  is  suited  to  the  action,  whether 
in  rem  or  in  personam. 

It  is  incumbent  on  the  respondent  to  answer  distinctly 
each  subsequent  fact  alleged  in  the  libel,  either  admitting  or 
denying,  or  declaring  his  ignorance  thereof,  and  to  allege  such 
other  facts  as  he  relies  upon  as  a  defence,  either  in  part  or  in 
whole,  to  the  case  made  by  the  libel. 

The  proofs  of  each  party  must  correspond  substantially 
with  his  allegations,  so  as  to  prevent  surprise.  But  there  are 
no  technical  rules  of  variance  or  departure  in  pleading,  like 
those  in  the  common  law,  nor  is  the  court  precluded  from 
granting  the  relief  appropriate  to  the  case  appearing  on  the 
record,  and  prayed  for  by  the  libel,  because  that  entire  case 
is  not  distinctly  stated  in  the  libel. 

In  Bayard  v.  Malcolm,^  Chief  Justice  Kent  said  : 
"  The  established  principles  of  pleading,  which  com- 
pose what  is  called  its  science,  are  rational,  concise, 
luminous,  and  ought,  consequently,  to  be  very  care- 
fully touched  by  the  hand  of  innovation." 

1  The  Peerless,  Lush.  103.     See  of  Cases,  376;  The  Aurora,  1  W. 

The  Dispatch,  Lush.  98;  The  Lothi-  Rob.  322;  The  Anne  and  Jane,  2  W. 

an,  Lush.  241;  The  Bothnia,  Lush.  Rob.  98;  The  Hebe,  2  W.  Rob.  146; 

52;  The  George  Arkle,  Lush.  222;  The  Glasgow  Packet,  2  W,   Rob. 

The    North   American,   Swa.   358;  306;  The  Virgil,  2  W.  Rob.  201-204; 

The  Schwalbe,  Swa.  521;  The  Has-  The  Speed,  2  W.  Rob.  225-227;  The 

well,  B.  &  L.  247;  The  Araalia,  B.  Ironmaster,  6  Jur.  n.  8.  782;  The 

&  L.  311;  The  Laurel,  B.  &  L.  191;  Clarence,  1  Spinks,  206;  The  Sylph, 

The  England,  5  Notes  of  Cases,  170;  L.  R.  2  Adm.  24. 
The  Lady  Anne,  7  Notes  of  Cases,  «  19  How.  171. 
364-370;  The  Mary  Anne,  4  Notes        •  IJohns.  (N.  Y.)  L.  R.  471. 


260  ADMIRALTY  LAW. 

And  the  advantage  of  an  orderly,  not  to  say  scien- 
tific, system  of  administration  is  as  apparent  in  the 
courts  of  admiralty,  and  mischiefs  of  uncertainty  or 
inexactness  are  as  positive  there,  as  in  any  other  tribu- 
nals. Such  seems  to  have  been  the  opinion  of  Justice 
Story.^ 

In  McKinlay  et  at  v.  Morrish  et  al.^  the  United  States 
Supreme  Court  held  that  the  rules  of  pleading  in  ad- 
miralty must  be  strictly  complied  with.  On  page  347 
the  court  "warn  the  profession  that  the  irregularity 
of  pleadings  in  admiralty,  now  too  frequently  occur- 
ring, have  attracted  our  attention,  and  will  be  treated 
hereafter  according  to  the  rules  and  practice  for  plead- 
ings and  proofs  in  admiralty  cases." 

Section  IV.  -  OF  TENDER. 

In  practice,  when  claimant  admits  a  certain  sum  to 
be  due,  and  desires  to  save  further  costs,  it  is  safest  to 
make  a  tender,  in  lawful  money  of  the  country,  to  the 
libellant,  of  the  amount  which  claimant  admits  that  he 
owes,  and  contends  that  he  owes  no  more.  This  sum 
must  include  all  costs  to  date  of  tender,  if  admitted 
to  be  also  due.  If  the  tender  be  accepted,  the  matter 
may  be  settled  out  of  court.^ 

If  the  claimant  does  not  intend  to  include  in  the 
tender  an  offer  to  pay  costs  up  to  the  time,  he  should 
state  that  the  tender  relates  only  to  the  demand  of 
libellant,  and  specify  the  grounds  upon  which  costs  are 
not  tendered,  referring  that  question  to  the  considera- 
tion of  the  court.* 

1  The  Boston,  1  Sumn.  328.  *  The  Hickman,  L.  R.  3  Adm. 

^  21  How.  343.  15,  19.    See  also,  as  to  costs  in  casea 

*  Williams  &  Bruce,  Prac.  (Eug-  of  tender,   The   John,    Lush.    11; 

lish),  258,  n.  The    Sovereign,     Lush.    85;     The 


PRACTICE  AND  PLEADING.  261 

If  the  tender  be  refused  by  libellant,  the  claimant 
may  deposit  the  amount  admitted  to  be  due  in  the 
registry  of  the  court,  and  obtain  a  receipt  there- 
for. 

The  money  remains  idle  in  the  hands  of  the  regis- 
trar until  the  end  of  the  suit.^ 

The  defendant  must  plead  the  tender,  and  the  court 
decides  upon  the  sufficiency  of  the  amount ;  and  if  it 
holds  it  to  be  sufficient,  it  may  either  condemn  the 
plaintiff  in  costs,  or  refuse  him  his  costs.'* 

Notwithstiinding  respondent  in  a  cause  of  salvage 
makes  a  tender  which  is  adjudged  sufficient,  yet,  if  it 
is  not  so  liberal  but  that  the  salvor  might  reasonably 
prosecute  the  suit  in  expectation  of  obtaining  a  larger 
award,  the  court  has  power,  in  the  exercise  of  a  sound 
discretion,  to  allow  him  costs  of  proceedings  after  the 
tender.  But  the  general  rule  is,  that  a  sufficient  ten- 
der throws  after-costs  on  libellant.' 

The  court  will  not  order  the  money  of  suitors  to  be 
put  out  at  interest,  except  upon  a  joint  application  of  a 
plaintiff  and  defendant* 

It  is  said  that  the  strict  doctrine  of  the  common  law, 
in  relation  to  the  manner  in  which  a  tender  should  be 
made,  and  the  production  of  the  money,  even  when 
the  offer  of  payment  is  rejected,  is  not  recognized  in 
the  admiralty  courts.^ 

In  Papayanni  &  Co.,  Owners  of  The  Thessalia,  v. 

Hope,  2  W.  Rob.  9;  The  Mobile,  117-125;  The  William,  5  Notps  of 

Swa.   256;   The  Cargo  ex  Honor,  Cases,    108;    Abbott  on  Shipping, 

L.  R.  1  Adm.  87;  The  Frederick,  1  part  iv.  ch.  12,  p.  574. 

Hagg.  211;  The  Eleanora  Charlotte,  •  Lubker  r.  The  N.  H.  Quimby, 

1    Hagg.     159;    The     Hedwig,     1  8  Reporter,  806. 

Spinks,  19.  *  Coote's  Admiralty  Practice  (2d 

»  The  Annie  Childs,  Lush.  509.  ed.,  London.  1869),  p.  121. 

•  The    Vrouw  Margaretha.  4  C.  *  Dunlap's    Admiralty  Practice, 

Rob.   103;  The  Clifton,  3   Hagg.  p.  103. 


262  ADMIRALTY  LAW. 

W.  H.  Tindall  &  Co.,  Owners  of  The  Yorkshire/  Sir 
R.  J.  Phillimore,  in  delivering  judgment,  said :  — 

The  value  of  the  "  Thessalia"  is  estimated  at  X90,000, — 
d630,000  the  ship,  and  X60,000  the  cargo;  and  the  value  of 
the  "Yorkshire"  is  X42,231.  Now,  for  this  service  Xl,200 
has  been  tendered  and  paid  into  court.  The  question  which  I 
have  to  decide  is,  whether,  looking  to  all  the  facts  of  the  case, 
and  applying  the  principle  of  law  to  those  facts,  that  sum  is 
adequate  for  the  services  rendered.  I  think  it  impossible 
to  doubt  that,  at  the  time  the  services  were  rendered,  the 
"  Yorkshire,"  with  her  cargo,  was  in  a  condition  of  consid- 
erable danger ;  she  was  unmanageable,  and  her  captain  was 
sensible  of  her  diflBculties,  and  sought  assistance.  A  slight 
and  unfavorable  change  in  the  weather  would  have  put  her 
in  a  position  of  great  peril,  from  which  she  was  relieved  by 
the  timely  assistance  of  the  "  Thessalia."  It  is  true  that  two 
large  vessels  cannot  come  together  without  considerable  peril 
to  each  other,  particularly  when  they  are  screw  steamers,  by 
the  breaking  of  the  hawser,  or  by  its  becoming  entangled 
with  the  screw.  It  required  no  ordinary  skill  on  the  part  of 
the  "  Thessalia  "  to  avoid  that  danger  ;  and  it  has  been  justly 
said  by  the  master  of  the  "  Yorkshire,"  in  his  letter  to  the 
master  of  the  "  Thessalia,"  wherein  he  expresses  his  admira- 
tion for  the  superior  skill  displayed,  that  he  saved  the  lives 
of  the  crew  of  the  "  Yorkshire  "  and  the  property  ;  and  that 
must  be  taken  into  consideration,  with  the  other  facts  of  the 
case,  in  coming  to  a  conclusion.  I  think  that  £1,200  is  in- 
adequate, and  I  shall  increase  it  by  X400.  I  take  into  con- 
sideration, in  making  the  award,  that  there  was  a  danger 
beyond  the  ordinary  perils  of  such  service,  and  that  the  ship 
itself  was  placed  in  great  peril.  The  award  will  be  .£1,600, 
to  cover  all  expenses. 

Section  V.  —  RULE  10  IN  ADMIRALTY. 

In  addition  to  the  cases  cited  in  the  Appendix  on 
Rule  10  of  the  United  States  Supreme  Court  in  Ad- 
1  Mitchell's  Maritime  Register  (London,  Jan.  23,  1880),  p.  114. 


PRACTICE  AND  PLEADING.  263 

miralty,  I  state  the  following  instance  of  sale,  by 
order  of  court,  of  goods  perishable,  or  liable  to  dete- 
rioration, decay,  or  injury,  by  being  detained  in  cus- 
tody pending  the  suit,  the  proceeds  of  which  were 
ordered  to  be  brought  into  court  to  abide  the  event 
of  the  suit. 

In  the  case  of  the  New  Harbor  Protection  Company 
f.  Ship  Tornado,  Cargo  and  Freight,  in  the  United 
States  District  Court  for  the  District  of  Louisiana,  No. 
11,207  (unreported),  the  libel  for  salvage  was  filed  27th 
February,  1878.  On  the  next  day  the  proctor  for  libel- 
lants  filed  a  motion  in  writing,  suggesting  that  the 
whole  cargo,  then  being  discharged  from  the  ship,  was 
greatly  damaged  by  water,  and  some  of  it  by  fire,  and 
some  of  it  by  fire  and  water,  and  would  in  all  proba- 
bility have  ultimately  to  be  sold,  being  in  unfit  con- 
dition to  be  sent  to  destination.  An  order  of  court 
was  thereupon  rendered  by  Billings,  J.,  on  said  motion, 
directing  the  sale  of  the  cargo  to  be  made  by  the  mar- 
shal upon  the  levee,  as  it  came  out  of  the  ship,  on  two 
days'  advertisement,  in  such  lots  as  might  accumulate 
from  day  to  day.  On  the  same  day,  February  28,  an 
application  was  made  by  the  master  of  the  ship,  in 
which  he  represented  that  he  was  desirous  and  entitled 
to  bond  said  ship  and  cargo,  and  asked  for  a  rule  upon 
the  libellants  to  show  cause  on  the  next  day  (March 
1)  why  said  order  to  sell  said  cargo  should  not  be  re- 
scinded, and  the  claimant,  said  master,  be  allowed  to 
bond  said  cargo. 

On  March  1,  said  rule  came  on  for  hearing  before 
said  court.  The  proctor  for  libellant  and  a  proctor 
representing  the  insurers  of  the  cargo  appeared  and 
resisted  the  rescinding  of  the  order.  Proctors  also  ap- 
peared for  the  said  master  and  claimant,  and  the  mover 


264  ADMIRALTY  LAW. 

of  the  rule  to  rescind.  On  the  trial  of  the  rule,  wit- 
nesses were  examined  orally  before  the  judge.  Evi- 
dence was  also  taken  by  order  of  the  court  in  relation 
to  the  condition  of  said  cargo,  and  whether  the  same 
was  or  was  not  a  total  loss. 

On  the  5th  of  March,  1878,  and  before  the  District 
Court  had  made  any  decision  or  order  on  said  rule  to 
rescind  the  order  for  sale  of  said  cotton,  a  proctor,  rep- 
resenting the  underwriters  for  Lloyd's,  by  leave  of  the 
court,  filed  an  intervention  for  the  interest  of  the  in- 
surers for  the  freight  on  said  cargo,  in  which  interven- 
tion it  was  prayed  that  the  said  order  for  the  sale  of 
said  cargo  be  rescinded. 

On  the  6th  of  March,  1878,  after  consideration  of  said 
rule  taken  by  the  master  of  the  ship  to  rescind  said 
order  of  sale,  and  the  evidence  and  arguments  thereon, 
and  of  the  said  intervention,  and  of  affidavits  and  briefs 
submitted  therewith,  the  court  ordered  that  the  said 
master  and  claimant  be  allowed  to  bond  the  ship,  and 
such  of  the  cotton  as  was  then  stored  and  in  good 
order,  amounting  to  five  hundred  and  twenty-three 
bales,  and  that  the  remainder  of  the  cargo  on  board 
the  ship,  or  upon  the  levee,  which  was  more  or  less 
damaged,  be  sold  by  the  marshal,  after  three  days'  no- 
tice ;  and  all  questions  of  freight  were  reserved  by  the 
court.  A  cotton  factor  of  high  standing  was  appointed 
a  Trinity  master,  to  advise  and  assist  in  making  sale  of 
the  cotton,  and  as  appraiser.  The  gross  proceeds  of  the 
sale  of  the  damaged  cotton  amounted  to  $116,000,  and 
the  Trinity  master,  who  also  acted  as  appraiser,  was  al- 
lowed a  reasonable  fee  for  his  services. 

This  appointment  resulted  in  benefit  to  all  parties  in 
interest.  The  aid  of  the  experienced  merchant  selected 
as  Trinity  master  and  appraiser  augmented  the  sum 


PRACTICE  AND  PLEADING.  265 

produced  by  the  sale  far  above  the  amount  of  compen- 
sation allowed  to  him  by  Billings,  J. 

Section  VI.— PRACTICE  IN  CRIMINAL  CASES. 

The  practice  of  the  admiralty,  in  criminal  cases,  is 
the  same  as  the  practice  of  the  courts  of  common  law 
in  like  cases.     They  are  tried  before  a  jury. 

The  practice  of  the  State  courts  is  not  adopted,  but 
is  according  to  the  usage  of  admiralty  courts,  subject 
to  the  limitiitions  of  the  Constitution,  the  amendments, 
and  the  acts  of  Congress.  Ben.  §  572.  See  also  the 
excellent  treatise  by  Alfred  Conkling,  Esq.  (4th  ed., 
1864),  on  the  Organization,  Jurisdiction,  and  Practice 
of  the  Courts  of  the  United  States,  Part  IV. ;  and  see  a 
Manual  of  Practice  in  the  Circuit  Courts  of  the  United 
States,  by  Augustus  A.  Boyce,  Albany,  1869,  p.  92, 
ch.  5. 

An  injunction  to  stay  proceedings  in  the  admiralty 
court,  in  a  suit  for  the  condemnation  of  a  ship,  has  been 
refused,  when  it  appeared  that  the  court  of  admiralty, 
by  its  own  rules,  had  as  large  an  authority  as  the 
court  of  chancery  to  put  the  subject  into  a  method  of 
inquiry,  and  to  act  upon  that  inquiry  by  giving  the 
same  relief.^ 

But  if  the  proceedings  in  the  admiralty  court  are  in 
that  stage  in  which  no  new  evidence  can  be  received, 
as  if  a  sentence  has  been  obtained  and  an  important 
fact  has  since  been  discovered,  the  court  of  chancery 
will  restrain  proceedings  to  enforce  that  sentence.* 

»  Anon.,  3  Atk.  350.  &  J.  440-454;  3  Daniell  Ch.  PI.  & 

*  Jarvis  v.   Chandler,  T.   &  R.    Pr.  1729  (3d  Am.  ed.,  Perkins). 
819.     See  Leycester  r.  Logan,  3  K. 


266  ADMIRALTY  LAW. 


CHAPTER  VIII. 

EVIDENCE. 

Section  I.  —  GENERAL  RULES. 

The  rules  of  evidence  in  admiralty  cases  are,  gener- 
ally, the  same  as  in  other  cases,  except  so  far  as  modi- 
fied by  acts  of  Congress  or  rules  of  court. 

The  principles  of  evidence  are,  generally,  the  same 
as  to  the  burden  of  proof,  the  relevancy  of  testimony, 
the  requisition  of  the  best  evidence,  and  the  like. 

Section  IL  — STATE  LAWS. 

The  Revised  Statutes  of  the  United  States,  §  858, 
provide  that  the  law  of  the  State  in  which  the  court  is 
held  shall  be  the  rule  of  decision  as  to  the  competency 
of  witnesses  in  the  courts  of  the  United  States  in  trials, 
except  as  excepted  in  said  section.     See  Appendix. 

Section  III.— MODE  OF  PROOF. 

By  section  862  of  the  United  States  Revised  Statutes, 
the  mode  of  proof  in  admiralty  causes  shall  be  accord- 
ing to  rules  by  the  Supreme  Court,  except  as  specially 
provided  in  chapter  seventeen  of  those  statutes.  See 
Appendix. 

A  book  of  original  entries,  kept  by  the  captain  of  the 
propeller,  who  was  also  part-owner,  is  inadmissible  to 


EVIDENCE.  267 

prove  cash  payments,  there  being  no  other  proof  of 
these  payments.^ 

A  receipt  given  by  an  ignorant  salvor  in  full  for  ser- 
vices will  be  opened  up  by  the  admiralty  court,  and  a 
larger  sum  awarded.^ 

The  carrying  contract  reduced  to  writing  in  a  bill  of 
lading  can  no  more  be  altered  or  varied  by  parol  evi- 
dence than  any  other  written  contract.* 

Bills  of  lading  are  both  receipts  and  contracts  to 
carry,  evidence  showing  that  the  goods  were  not  shipped 
on  board  the  vessel  at  all  is  admissible.* 

A  bill  of  lading,  or  other  voucher  giving  the  terms 
of  transportation,  cannot,  in  the  absence  of  fraud  or 
other  concurrent  mistake,  be  varied  by  parol.^ 

Evidence  of  prior  conversations  is  inadmissible  to  vary 
the  provisions  of  a  bill  of  lading.* 

In  proceedings  in  admiralty,  the  strict  rules  of  the 
common  law  in  respect  to  the  admission  of  evidence  are 
not  fully  applied.^ 

The  testimony  of  experts  is  admissible  in  determining 
an  issue  involving  a  question  of  nautical  skill.' 

By  Rule  46  of  the  Rules  of  Practice  for  the  courts 
of  the  United  States  in  admiralty,  by  the  United 
States  Supreme  Court,  it  is  established  that,  in  cases 

*  Milligfan  v.  Propeller  Bruce,  •  Abbott's  Trial  Evidence,  p. 
Newb.  539.  573,  No.  42,  and  authorities  there 

«  The   Sir  Robert  Peel,  A.  C,  cited. 
Shipping    Gazette,    Dec.    8,    1854.         •  O'Rourke  r.  Two  Hundred  and 

See  Maclachlan  on  the  Law  of  Mer-  Twenty-one  Tons  of  Coal,  1   Fed. 

chant  Shipping,  531.  Rep.  619. 

*  S.  L.  James  p.  St.  Bt.  Golden  »  Elwell  v.  Martin,  Ware,  3; 
Rule,  by  Pardee,  Circuit  Judge,  The  J.  F.  Spencer,  3  Ben.  3-37.  See 
November,  1881;  The  Delaware,  Abbott's  Trial  Evidence,  p.  TSl, 
14  Wall.  579.  No.  1.  2;  Abb.  U.  S.  Pr.  80. 

*  Uutchinson  on  Carriers.  §  122 ;  »  Transportation  Line  v.  Hope, 
The  Schooner  Freeman  v.  Bucking-  95  U.  S.  (5  Otto)  297 ;  The  City  of 
ham,  18  Uow.  182.  Washington,  92  U.  S.  (2  Otto)  31. 


268  ADMIRALTY  LAW. 

not  provided  for  by  the  foregoing  rules,  the  District 
and  Circuit  Courts  are  to  regulate  the  practice.  See 
Admiralty  Rule  46,  Appendix,  and  authority  there 
cited. 

Section  IV.— IN  LOUISIANA. 

In  this  district  (Louisiana)  the  practice  is  to  take,  by 
order  of  court,  or  by  consent  of  parties,  the  testimony 
of  witnesses  before  the  clerk,  acting  as  United  States 
commissioner.  Sometimes,  by  consent,  the  testimony 
is  taken,  at  a  time  and  place  agreed  upon,  without  the 
presence  of  a  commissioner ;  or  the  testimony  may  be 
taken  by  commissioners,  as  provided  by  Rules  14-18 
of  the  District  Court  of  Louisiana. 

Section  V.  — DEPOSITIONS. 

Testimony  may  also  be  taken  by  depositions  de  bene 
esse,  under  sections  863-865  of  the  United  States  Re- 
vised Statutes. 

Wharton's  Law  of  Evidence  says  that  the  adjudica- 
tions on  depositions  would  require  a  separate  volume. 
This  want  has  been  well  supplied  by  a  treatise  on  the 
Law  of  Depositions,  by  Edward  P.  Weeks,  in  a  volume 
of  714  pages,  comprising  the  law  of  depositions,  and  ab- 
stracts of  the  statutes  relating  thereto. 

Witnesses  may  be  examined  by  dedimus  potesiatem  to 
take  testimony,  under  sections  866,  868,  869  of  the 
United  States  Revised  Statutes.     See  Appendix. 

Testimony  may  also  be  taken  by  depositions  in  perpet- 
uam  ret  memonajn,  by  virtue  of  section  866  of  the  United 
States  Revised  Statutes ;  and  by  letters  rogatory,  under 
section  876  of  those  statutes.     See  Appendix. 

Subpoenas  for  witnesses  are  regulated  by  section  876 
of  the  United  States  Revised  Statutes,     See  Appendix. 


EVIDENCE.  269 

The  rules  of  evidence  in  admiralty  cannot  be  changed 
by  a  State  statute.* 

In  the  admiralty  the  same  rule  does  not  prevail  as 
in  equity, — that  the  answer  to  matters  directly  respon- 
sive to  the  allegations  of  the  bill  is  to  be  treated  as 
sufficient  proof  of  the  facts,  in  favor  of  the  respondent, 
unless  overcome  by  the  testimony  of  two  witnesses,  or 
of  one  witness  and  other  circumstances  of  equivalent 
force.* 

On  exceptions  allowed,  that  the  answer  is  not  full 
and  explicit,  the  court  may  compel  defendant  to  make 
further  answer,  or  direct  the  matter  of  the  exception 
to  the  answer  to  be  taken  -pro  confesso.  See  Admiralty 
Rule  30  of  the  United  States  Supreme  Court,  Appendix, 
and  authorities  there  cited. 

So,  on  default  of  libellant  to  answer  interrogatories ; 
or  the  court  may  dismiss  the  libel.  Admiralty  Rule  32. 
See  Appendix,  and  authorities  there  cited. 

The  answer  of  the  defendant  to  the  libel  and  inter- 
rogatories must  be  on  oath  or  solemn  affirmation,  and 
full  and  explicit,  and  distinct.  Admiralty  Rule  26.  See 
Appendix,  and  authorities  there  cited. 

The  party  claiming  the  property  must  verify  his 
claim  on  oath  or  solemn  affirmation.  Admiralty  Rule 
26.    See  Appendix,  and  authorities  there  cited. 

Sbction  VI.  —  ON  APPEAL. 

Further  proof  taken  in  a  Circuit  Court  upon  an 
admiralty  appeal  shall  be  by  depositions  upon  oral 
examination,  unless  the  court  allow  a  commission  to 
issue  to  take  such  depositions  upon  written  interroga- 
tories and  cross-interrogatories,  upon   notice,  as  pro- 

*  The  William  Jarvis,  1  Sprague,         •  Andrews  ».  Wall,  3  How.  672. 
485. 


270  ADMIRALTY  LAW. 

vided  by  Rule  49  in  Admiralty.  See  Appendix,  and 
authorities  there  cited ;  and  United  States  Revised 
Statutes,  §  865,  herein  above  cited. 

When  oral  evidence  shall  be  taken  down  by  the 
clerk  of  the  District  Court,  pursuant  to  the  above- 
mentioned  section  of  the  act  of  Congress,  and  shall  be 
transmitted  to  the  Circuit  Court,  the  same  may  be  used 
in  evidence  on  the  appeal.  Admiralty  Rule  50.  See 
Appendix,  and  authorities  there  cited. 

When  a  motion  is  made  by  an  appellant  to  examine 
witnesses  in  the  Supreme  Court  in  appeal  in  admiralty, 
the  appellant  should  show  some  excuse  satisfactory  to 
the  court  for  the  failure  to  examine  them  in  the  court 
below.^ 

The  cause  may  be  continued  to  the  next  term,  if 
the  proof  is  deficient,  with  leave  to  each  party  to  pro- 
duce further  proofs 

It  is  the  practice  of  the  Supreme  Court,  in  prize 
causes,  to  hear  the  cause,  in  the  first  instance,  upon 
the  evidence  transmitted  from  the  Circuit  Court,  and 
to  decide  upon  the  evidence  whether  it  is  proper  to 
allow  further  proof.^ 

Affidavits  to  be  used  as  further  proof  in  causes  of 
admiralty  and  maritime  jurisdiction  in  this  court  must 
be  taken  under  commission.* 

If  the  evidence  is  taken  under  a  commission  issued 
after  an  appeal,  without  a  previous  order  from  this 
court,  it  will  not  be  considered,  unless  a  sufficient  ex- 
cuse is  shown  for  the  failure  to  examine  the  witnesses 
in  the  usual  way  before  the  appeal.^ 

In  the  District  Court  of  the  United  States,  sitting 

1  The  Maby,  10  WalL  419.  *  Ibid. 

2  The  Samuel,  1  Wheat.  9.  «  The  Juniata,  91  U.  S.  (1  Otto) 
«  The  London  Packet,  2  Wheat.    366. 

371. 


EVIDENCE.  271 

in  admiralty,  the  law  of  England  may  be  proved  by 
printed  books  of  statutes,  reports,  and  text-writers,  as 
well  as  by  the  sworn  testimony  of  experts.^ 

Section  VII.  —  BURDEN  OF  PROOF. 

The  burden  of  proof  is  on  the  appellant  to  demon- 
strate, beyond  a  reasonable  doubt,  the  mistake  or  error 
of  law  or  of  fact* 

Probably  no  two  minds,  acting  often  independently 
of  each  other,  will  always  arrive  at  exactly  the  same 
conclusion  as  to  amount  in  cases  of  discretionary  sal- 
vage. Yet  each  might  act  for  itself  with  the  utmost 
caution,  care,  and  sagacity.  A  decree  will  not,  there- 
fore, be  reversed  upon  this  ground,  imless  there  is  a 
plain  and  palpable  departure  from  the  t^ue  principles 
of  salvage.* 

Where  it  appears  that  manifest  injustice  has  been 
done  in  the  assessment  of  damages,  or  error  in  law 
has  been  committed,  it  is  the  duty  of  the  court  to 
interfere.* 

The  Circuit  Court  ordinarily  does  not  interfere  with 
the  amount  of  damages  decreed  by  the  court  below. 
The  district  judge  luis  the  witnesses  before  him,  and 
therefore  has  an  opportunity  of  arriving  at  the  truth 
not  within  the  grasp  of  the  Circuit  Court,  where  the 
testimony  is  in  writing.  When,  therefore,  no  addi- 
tional testimony  is  taken,  the  Circuit  Court  will  not 
hastily  disturb  a  decree  on  the  point  of  damages,  or 
unless  it  shows  manifest  injustice." 

1  The  Pawashick,  2  Low.  142.  Anna,   10  Blatchf.   456 ;  Hearse  v. 

'  Cushraan  ».  Ryan,  1  Story,  91;  Pigs  of  Copper,  1  Story,  314. 
Bearse  v.  Pigs  of  Copper,  1  Story,         *  The   Yankee  t>.    Gallagher,   1 

314 ;  Baker  r.  Smith,  1  Holnip^,  85.  McAllister,  467. 

•  The  Boston,  1  Sumu.  328;  The         »  The    Yankee  v.  Gallagher,   1 


272  ADMIRALTY  LAW. 

In  the  case  of  Tucker  et  al  v.  The  Barque  Mary 
C.  Porter  and  Cargo,^  it  was  held,  that,  if  a  cargo 
is  imported  or  brought  into  the  United  States,  under 
the  general  law  subject  to  duties,  but  under  certain 
circumstances  exempted  from  duties,  it  is  for  the  owner, 
asking  the  benefit  of  the  exception,  to  make  proof  of 
the  facts  which  entitle  him  to  it. 

In  Flannagan  v.  Ship  Queen  of  the  East,^  Judge 
Pardee  said  :  — 

I  understand  it  to  be  well  settled  that,  in  all  maritime  con- 
tracts, usage  or  customs  are  always  applicable  and  binding 
cm  the  parties  to  explain  doubtful,  and  supplement  incom- 
plete, agreements  and  stipulations. 

"  The  principle  on  which  evidence  of  usage  is  admissible 
for  such  a  purpose  is,  that  the  parties  have  not  set  down  the 
whole  of  their  contracts  in  all  its  terms,  but  those  only  which 
were  necessary  to  be  determined  in  the  particular  case,  by 
specific  agreement,  and  which,  of  course,  may  vary  infinitely, 
leaving  to  implication  and  tacit  understanding  all  those  gen- 
eral and  unvarying  incidents  which  a  uniform  usage  would 
annex,  and  according  to  which  in  reason  they  must  be  un- 
derstood to  contract,  unless  they  expressly  exclude  them." 
See  Maclachlan,  p.  384. 

"  Any  custom  or  usage  may  be  proved,  not  only  to  explain 
the  meaning  of  terms  to  wliich  a  peculiar  and  technical  mean- 
ing is  thus  affixed,  but  also  to  su])ply  evidence  of  the  inten- 
tions of  the  parties  in  respect  to  matters  with  regard  to 
which  the  contract  itself  affords  a  doubtful  indication,  or 
perhaps  no  indication  whatever. 

"  And,  therefore,  an  established  and  well-known  custom 
may  add  to  a  contract  terms  or  stipulations  not  contained 
in  it."     See  1  Waite,  128  et  seq. 

McAllister,  467;  West  v.  The  Uncle  ^  U.  S.  Dist.  Ct.  for  the  District 

Sam,  1  McAllister,  505;  Cushraan  v.  of  Soutli  Carolina,  Magrath,  J.  (not 

Ryan,  1  Story,  91 ;  The  Narragan-  reported). 

sett,  1  Blatchf.  211;  Taylor  v.  Har-  ^  Eastern  District  of  Louisiana, 

wood,  Tauey,  437.  May,  1S82,  by  Pardee,  Circuit  Judge. 


EVIDENCE.  273 

Where  there  has  been  no  actual  delivery  of  goods, 
the  carrier  cannot  be  concluded  by  pretended  bills  of 
lading,  which  the  master  signs  in  fraud  of  his  employ- 
ers by  connivance  with  the  consignor.* 

On  evidence  in  courts  of  admiralty  and  maritime 
jurisdiction,  see  also  Greenleaf  on  Evidence,  pp.  350- 
410,  vol.  iii.,  13th  ed.,  carefully  revised,  with  large  ad- 
ditions, by  John  Wilder  May,  Boston,  1876. 

^  Grant  v.  Norway,  10  C.  B.  665.  And  see  Schooler's  Bailments,  374; 
Hutchinson  on  Carriers,  pp.  94-96. 


18 


274  ADMIRALTY  LAW. 


CHAPTER  IX. 

TRIAL. 

Section  L  — REFEREES. 

Although  the  District  Court  has  no  power  to  try  an 
admiralty  case  by  jury,  except  as  allowed  by  statute, 
yet  it  may  on  its  own  motion,  or  at  the  desire  of  the 
parties,  submit  any  question  of  fact  to  commissioners  or 
referees  for  their  opinion  or  advice ;  and  the  number  of 
these  commissioners  may  be  twelve  as  well  as  any  other 
number.^ 

See  Chapter  XII.,  Appeals,  Section  I. 

Section  IL— BILL  OF  EXCEPTIONS. 

Only  such  rulings  are  to  be  put  in  the  bill  of  excep- 
tions as  can  properly  be  put  into  a  bill  of  exceptions 
on  the  trial  of  an  action  at  law.^ 

Section  IIL  —  IN  THE  LOUISIANA  DISTRICT. 

The  case  in  the  Louisiana  district  is  set  down  for 
hearing  on  motion  of  either  party  for  a  day  certain. 
That  both  libellant  and  claimant  should  be  accorded 
this  right  to  have  a  day  assigned  for  the  trial  is  emi- 
nently proper. 

The  practice  in  the  United  States  District  Court  for 
the  District  of  Louisiana,  that  either  libellant  or  claim- 

1  Lee  V.  Thompson,  3  Woods,  167.         2  xhe  Abbotsford,  98  U.  S.  440. 


TRIAL.  275 

ant  may  "  notice  a  case  for  hearing,"  accords  with  that 
of  the  District  Court  for  the  Southern  District  of  New 
York.^ 

In  Jennings  v.  Carson,^  Marshall,  C.  J.,  in  delivering 
the  opinion  of  the  court,  said  the  libellant  and  the 
claimant  are  both  actors. 

By  Rule  19  of  the  United  States  District  Court  it  is 
provided  that,  in  all  cases  brought  to  trial,  or  argument, 
or  hearing,  five  days'  notice  shall  be  served  on  the 
party,  or  on  his  attorney  or  proctor,  when  the  party  or 
his  attorney  resides  in  the  parish  of  Orleans.  In  all 
other  cases,  posting  such  notice  conspicuously  in  the 
clerk's  ofl&ce  for  the  term  of  seven  days  shall  be  suffi- 
cient notice. 

It  is  not  usual  in  the  Louisiana  district  to  read  the 
testimony  in  full  to  the  court. 

Where  there  are  several  libellants  who  have  filed 
their  libels  at  different  dates,  the  proctor  in  the  libel 
first  filed  opens  the  case.  This  he  does  by  a  brief  state- 
ment, sketch,  or  outline  of  the  libel,  of  the  prayer,  of 
the  testimony  in  so  far  as  it  applies  to  his  particular 
case,  and  of  the  authorities  in  support  of  his  positions 
or  demands. 

He  is  followed  by  the  proctor,  whose  lib,el  is  second 
in  the  date  of  filing ;  and  so  on  until  all  the  proctors 
for  libellants  or  for  intervenors  have  opened  their  cases 
and  proceeded  with  their  libel  testimony  and  law,  as  did 
the  proctor  for  the  libellant  whose  libel  was  first  filed. 

Each  proctor  is  allowed  forty  minutes,  unless  where, 
in  cases  of  extraordinary  complication,  importance,  or 
voluminousness,  the  court  extends  the  time. 

In  some  few  cases  the  court  has  stated  that  it  would 

1  The  Mariel,  6  Fed.  Rep.  81.  «  4  Cranch,  2. 


276  ADMIRALTY  LAW. 

not  limit  the  proctor  as  to  time.  (The  same  rules  as  to 
time  prevail  in  the  Circuit  Court  on  appeal.) 

After  the  proctor  or  proctors  for  libellant  or  libel- 
lants  have  concluded  their  opening,  the  proctor  for 
respondent  replies  in  like  manner. 

The  proctor  for  libellant  then  briefly  replies  to  his 
adversary,  and  the  case  is  submitted  to  the  court. 

Sometimes  the  court  recommends,  and  sometimes  re- 
quires, a  brief  statement  in  writing  of  the  substance  of 
the  testimony  and  of  the  law. 

In  important  or  difficult  cases  the  proctors  furnish 
printed  briefs  to  the  District  Court,  and  so  likewise  to 
the  Circuit  Court.  The  case  is  then  taken  under  ad- 
visement by  the  court,  and  the  decree  is  rendered 
within  a  reasonable  time  after  the  trial. 

In  Chapter  VII.,  Pkactice  and  Pleading,  and  Chap- 
ter VIII.,  Evidence,  I  have  already  furnished  much 
which  applies  to  "  The  Trial." 

Section  TV. —NEW  TRIAL. 

The  party  dissatisfied  with  the  decree  may,  before 
it  becomes  final,  apply  for  a  new  trial. 

This  is  effected  by  a  rule  on  the  opposite  party  to 
show  cause,  on  a  day  and  hour  stated,  why  a  new  trial 
should  not  be  granted  on  the  grounds  therefor  stated 
in  the  rule. 

If  the  court  permits  the  rule  to  be  filed,  it  is  briefly 
argued  at  the  time  stated  therein,  and  submitted. 

An  application  for  a  rehearing  will  be  denied,  if  it  is 
made  after  the  lapse  of  the  term  at  which  the  decree 
was  entered.^ 

1  Petty  ».  MerriU,  12  BlatcM.  11. 


TRIAL.  277 

Section  V.  —  CONTINUANCE. 

A  party  who  has  not  been  guilty  of  laches  may  get 
a  continuance  for  the  purpose  of  producing  further 
proof.^ 

If  the  party  fails  to  have  the  deposition  of  a  witness 
in  the  District  Court  reduced  to  writing,  and  the  wit- 
ness does  not  attend  upon  summons,  it  is  in  general  no 
ground  for  a  continuance.'* 

There  may  be  a  case  where  special  circumstances  of 
surprise  upon  the  party,  or  sickness  of  the  witness,  may 
except  it  out  of  the  rule ;  but  it  must  be  a  strong  case.' 

If  the  witness  who  was  examined  in  the  District 
Court  is  present  in  the  Circuit  Court,  the  party  is  en- 
titled to  examine  him.* 

No  case  will  be  continued  for  the  purpose  of  enab- 
ling the  party  to  procure  new  testimony.  He  must 
come  prepared  with  his  new  testimony,  if  he  desires 
to  use  it.^ 

The  appellant  cannot  obtain  a  continuance  where  he 
has  neglected  to  file  the  transcript  until  within  a  few 
days  before  the  commencement  of  the  term.' 

»  Rose  V.  Himley,  Bee,  313.  »  Ibid. 

•  Taylor  v.  Harwood,  Taney,  427.         •  Backus    v.    The    Marengo,    6 

•Ibid.  McLean,  499;  Nail  p.  The  Illinoia, 

«  Ibid.  6  McLean,  413. 


278  ADMIRALTY  LAW. 


CHAPTER  X. 
DECEEE. 

Section  L  — ON  APPEAL. 

The  whole  decree  in  the  court  below  is  brought  up  on 
the  appeal,  although  only  a  part  is  appealed  from.  In 
its  nature  it  is  not  severable.  A  part  of  the  suit  cannot 
be  in  one  court  and  a  part  in  another  at  the  same  time. 
If  that  which  is  appealed  from  is  reversed,  that  which 
is  not  reversed  becomes  a  part  of  the  decree,  and  is  to 
be  executed  by  the  Circuit  Court.^ 

If  a  libellant  appeals  from  a  decree  in  his  favor  he 
opens  the  whole  case,  and  the  Circuit  Court  may  dis- 
miss the  libel  if  it  finds  that  he  is  not  entitled  to  re- 
cover.^ 

If  the  decree  allows  interest  to  the  date  thereof,  the 
interest  must  be  included  with  the  principal,  in  order 
to  determine  what  was  the  sum  or  value  in  dispute  at 
the  time  when  the  appeal  was  taken ;  and  if  that 
sum  exceeds  $5,000,  an  appeal  to  the  Supreme  Court 
lies.^ 

Unless  interest  is  specially  claimed  in  the  libel,  no 
computation  of  interest  can  be  made  to  give  jurisdic- 
tion.   Interest  is  not  allowed,  unless  specially  directed.* 

1  The  Roarer,  1  Blatchf.  1.  *  Udall  v.  The   Ohio,  17  How. 

'  Saratoga  v.  Four  Hundred  and  17;  Olney  v.  The  Falcon,  17  How. 

Thirty-eight  Bales,  1  Woods,  75.  19;   The  Grapeshot,  2  Woods,   42. 

8  The   Patapsco,   12  Wall.  451;  And    see    The    Rebecca  Clyde,   12 

The  Rio  Grande,  19  Wall.  178.  Blatchf.  403. 


DECREE.  279 

Section  U.  —  WHEN  INTEREST  ALLOWED. 

If  a  decree  is  affirmed,  interest  for  the  delay  may  be 
allowed  on  the  costs  as  well  as  on  the  amount  of  the 
decree.* 

In  the  case  of  The  Louisiana,^  the  decree  of  the 
Circuit  Court,  by  Woods,  Circuit  Justice,  allowed  four 
and  a  half  per  cent  on  the  value  of  the  ship  and  cargo 
($700,000  being  that  value),  with  interest  at  the  rate 
of  five  per  cent  per  annum  from  24th  March,  1880,  the 
date  of  the  decree  in  the  District  Court,  and  costs  of 
court. 

Interest  is  not  allowed  in  salvage  cases,^  unless  spe- 
cially directed  by  the  court.* 

Nor  is  interest  allowed  where  the  decree  is  affirmed 
by  a  divided  court.^ 

If  the  vessel  has  been  discharged  on  stipulation,  and 
one  of  the  stipulators  has  since  died,  his  death  should 
be  suggested,  and  a  decree  entered  against  the  other.® 

Section  IIL  —  REHEARING. 

An  application  for  a  rehearing  will  be  denied  if  it  is 
made  after  the  lapse  of  the  term  at  which  the  decree 
was  entered.^ 

The  Circuit  Court  cannot  remand  the  case  to  the 
District  Court  to  carry  its  decisions  into  execution. 
The  court  must  carry  its  own  decree  into  execution.* 

>  The  Wanata,  95  U.  S.  600.  »  Ibid. 

«  No.  9156  of  the  Docket  of  the  •  The    James    A.    Wright,    10 

U.  S.  Circuit  Court  for  the  Eastern  Blatchf.  160;  The  C.  Ackerman,  14 

District  of  Louisiana,  June  16, 1881  Blatchf.  860. 

(not  reported).  t  Petty  v.  Merrill,  12  Blatchf.  11. 

•  Phillips's  Practice  in  United  •  Montgomery  v.  Anderson.  21 
States  Supreme  Court,  190.  How.  886;  The  Collector,  6  Wheat. 

*  Hemmeuway  v.  Fisher,  20  191.  But  see  contra,  U.  S.  Rev. 
How.  255.  Stat.   §  636,  which    provides    that 


280  ADMIRALTY  LAW. 

This  section  636  extends  to  admiralty  proceedings, 
and  gives  the  United  States  courts  power,  after  hear- 
ing a  cause  on  appeal,  to  remand  with  directions.^ 

A  new  decree  should  be  made  in  the  Circuit  Court. 
The  (decree  should  be  complete  within  itself.  No  final 
decree  of  a  court  which  enforces  its  own  judgments 
ought  to  be  left  in  such  condition  that  the  record  of 
another  court  is  the  only  evidence  of  the  amount  re- 
covered by  the  successful  party.  An  order  merely 
affirming  the  decree  of  the  District  Court  is  not  a  final 
decree.^ 

The  Circuit  Court  should  not  affirm  a  decree  in  part, 
and  dismiss  the  appeal.^ 

Courts  of  admiralty  have  power  to  vary  their  own 
decrees.  In  the  American  practice,  a  summary  rehear- 
ing, on  motion,  can  be  granted  only  during  the  term  at 
which  the  decree  was  made.  In  defaulted  actions,  the 
summary  jurisdiction  to  rehear  is  limited  to  ten  days, 
irrespective  of  terms  of  court,  by  Admiralty  Rule  40  of 
the  Supreme  Court.  After  the  term  has  passed  in  ordi- 
nary cases,  and  after  ten  days  in  defaulted  cases,  the 
court  can  entertain  a  libel  of  review.* 


Section  IV.  —  MARSHALLING  ASSETS. 

Courts  of  admiralty  recognize  and  enforce  in  proper 
cases  the  equitable  rule  that  where  one  creditor  has  two 

•'  A  Circuit  Court  may  affirm,  mod-         *  The  Benefactor  Steamship  Co. 

ify,  or  reverse  any  judgment,  de-  r.  Mount,  13  Otto,  239 ;  11  Fed.  Rep. 

cree,  or  order  of  a  District  Court  928. 

brought  before  it  for  review,  or  may         ^  Harris  v.  "\^Tieeler,  8  Blatchf . 

direct  such  judgment,  decree,  or  or-  81;  The  Lucille,  19  Wall.  73. 

der  to  be  rendered,  or  such  further         *  The  Lottawana,  20  Wall.  201. 

proceedings  to  be  had  by  the  District         *  Snow  v.   Edwards,   2   Lowell, 

Court,   as  the  justice  of  the  case  273. 

may  require." 


DECREE. 


28? 


funds  to  resort  to,  and  another  has  but  one,  the  cred- 
itor having  two  will  be  compelled  to  resort  first  to  that 
which  the  other  creditor  is  not  entitled  to  resort  to,  in 
order  that  both  may  be  paid.^ 

In  the  case  of  competing  suits,  the  court  or  admi- 
ralty, as  a  court  of  equity,  will  marshal  the  assets  so  as 
to  protect  one  creditor  against  another,  and  prevent  the 
election  of  one  from  prejudicing  the  other's  claim.^ 

The  District  Court  can  marshal  the  fund  in  its  regis- 
try only  between  lien-holdei-s  and  owners.^ 

Section  V.  — ADMIRALTY  RULES  AS  TO  DECREES. 

By  Rule  8  in  Admiralty  (see  Appendix),  in  suits 
in  rem  against  a  ship,  her  tackle,  &c.,  if  such  tackle, 
&c.,  are  in  the  possession  of  a  third  person,  the  court 
may  decree  delivery  to  the  marshal  or  other  proper 
person. 

Admiralty  Rule  21  (see  Appendix,  and  authorities 
there  cited)  provides  that,  on  final  decree  for  payment 
of  money,  libellant  shall  have  a  writ  of  execution 
against  defendant  or  stipulators. 

By  Rule  40  in  Admiralty  (see  Appendix,  and  au- 
thorities there  cited)  the  court  may  rescind  the  decree 
rendered,  on  account  of  defendant's  contumacy  and 
default. 

By  Admiralty  Rule  41  (see  Appendix,  and  au- 
thorities there  cited)  all  sales  shall  be  made  by  the 
marshal,  and  the  proceeds  paid  into  the  registry  of  the 
court. 

1  The  Brig  Wexford,  7  Fed.  Rep.         «  Abbott's     Law    of    Merchant 

683  (1881),citln€r  The  Sailor  Prince,  Ships  and  Seamen,  5f)9  (12th  ed., 

1  Ben.   234,   461;  The   Adolph,  7  London,    1881,    by    S.     Prentice, 

Fed.  Rep.  935.     See  The  Olivia  A.  Q.  C). 

Carrington,  7  Fed.  Rep.  507;  The         •  The  Edith,  94  U.  S.  (4  Otto) 

Brig  Wexford,  7  Fed.  Rep.  674.  618. 


i282  ADMIRALTY  LAW. 

Where  a  steamer  is  condemned  for  the  loss  of  a 
schooner,  the  decree  for  a  total  loss  bars  any  claim  to 
the  schooner  by  her  former  owners,  and  their  title 
should  be  remitted  to  the  owners  of  the  steamer.^ 

The  rule  that  the  court  will  give  priority  to  the 
suitor  who  first  obtains  a  decree  applies  only  as  be- 
tween claimants  in  pari  conditioned' 

In  a  case  of  collision,  where  the  decree  is  against 
both  defendants,  it  should  provide  that  any  balance 
which  the  libellants  shall  be  unable  to  collect  from  one 
shall  be  paid  by  the  other,  or  her  stipulators,  to  the  ex- 
tent of  her  stipulated  value  beyond  the  moiety  due 
from  her.^ 

The  doctrine  announced  in  The  Atlas  (93  U.  S. 
302),  that  where  an  innocent  party  suffers  damages 
by  a  collision  resulting  from  the  mutual  fault  of  two 
vessels,  only  one  of  which  is  libelled,  the  decree  should 
be  against  such  vessel  for  the  whole  amount  of  the 
damages,  and  not  for  a  moiety  thereof,  —  reaffirmed, 
and  applied  to  the  case  of  The  Juniata.^ 

In  the  case  of  The  Lilhe  Laurie,^  Judge  Woods 
said :  — 

An  interesting  question  of  practice  is  raised  by  the  fact 
that  the  decrees  rendered  by  the  District  Court  in  favor  of 
the  furnishers  of  supplies  in  the  home  port,  each  decree  being 
for  a  less  sum  than  fifty  dollars,  and  the  decree  therefore  not 
being  subject  to  appeal,  were  paid  in  full  out  of  the  registry 
of  the  court,  pending  the  appeal  of  Stevenson. 

Were  these  decrees  properly  paid  ?     It  seems  to  me  clear 

1  The  Falcon,  19  Wall.  75.  U.  S.  (7  Otto)  323.     See  The  Ala- 

2  The  Markland,  3  A.  &  E.  340;  bama  and  The  Game  Cock,  92  U.  S. 
2   Law  Reports   Digest,  1865-1880     (2  Otto)  695. 

(London,  1882),  p.  2911.  *  93  U.  S.  337. 

8  The  Virginia  Ehrman  and  The  *  Circuit  Court,  Eastern  District 

Agnese,  97  U.  S.  (7  Otto)  309;  The  of  Texas,  Dec.  3,  1880,  Woods,  Cir- 

City  of  Hartford  and  The  Unit,  97  cuit  Judge. 


DECREE.  283 

that  they  were  not.  The  funds  in  the  registry  being  insuffi- 
cient to  pay  the  costs,  the  maritime  liens,  and  the  claims  of 
these  furnishers  of  supplies,  a  controversy  necessarily  arose 
between  Stevenson  and  the  supply  men,  touching  their  right 
to  priority  of  payment.  The  libel  of  Stevenson  having  been 
dismissed  by  the  District  Court,  his  right  to  priority  of  pay- 
ment over  the  supply  men  could  only  be  settled  in  the  Circuit 
Court,  and  that  question  was  taken  up  by  the  appeal.  All 
that  the  supply  men  could  insist  on  was  that  the  amount  of 
their  claims  should  not  be  disturbed  by  the  Circuit  Court, 
that  having  been  finally  settled  by  the  District  Court.  But 
as  long  as  Stevenson  was  prosecuting  his  appeal,  and  claiming 
priority  over  them  in  the  Circuit  Court,  they  could  not  settle 
that  question  in  their  own  favor  by  getting  payment  of  their 
claims  in  full  from  the  registry  of  the  District  Court.  To 
hold  otherwise  would  be  to  allow  the  fund  against  which  an 
appellant  was  prosecuting  his  claim  to  be  entirely  withdrawn, 
and  thus  deprive  him  of  all  the  fruits  of  his  appeal  and  de- 
cree, should  the  appellate  court  decide  in  his  favor. 

Where  there  is  a  fund  in  the  District  Court  against  which 
several  libellants  are  prosecuting  claims,  and  it  is  insufficient 
to  pay  all,  and  the  claim  of  the  libellant  is  disallowed  and  he 
appeals  to  the  Circuit  Court,  no  payments  should  be  made 
from  the  fund  until  after  the  decree  of  the  Circuit  Court 
upon  the  appeal. 

By  such  an  appeal  the  whole  decree  is  brought  up.  The 
part  not  appealed  from  remains  here  in  full  force,  to  be 
executed  on  the  final  termination  of  the  cause.  What  is 
not  reversed  is  still  in  force,  and  becomes  part  of  the  decree 
of  this  court,  and  is  to  be  executed  as  such.  The  Roarer, 
1  Blatchf.  1.  The  result  of  this  view  is  that  the  entire  fund 
should  have  been  sent  up  to  this  court  with  the  appeal. 
The  appeal  carries  the  res,  or  money,  in  the  registry  of  the 
District  Court  to  the  Circuit  Court,  and  when  the  rights  of 
the  parties  are  adjudicated,  then  the  court  must  carry  iuto 
execution  its  own  decree.^ 

^  Montgomery  v.  Anderson,  21  How.  386. 


284  ADMIRALTY  LAW. 


CHAPTER  XL 

COSTS    AND    FEES. 

Section  L— COSTS. 

Where  the  cause  is  reversed- for  want  of  jurisdiction, 
the  libellants  may  be  decreed  to  pay  all  the  costs.^ 

If  the  decree  is  not  varied  as  to  the  appellee,  he  is 
entitled  to  costs.^ 

If  the  appeal  is  dismissed  for  want  of  jurisdiction,  no 
costs  will  be  awarded.* 

If  the  libellant  claims  to  reverse  the  whole  decree, 
no  costs  will  be  allowed  to  him  where  the  libel  is  dis- 
missed for  want  of  jurisdiction.* 

If  the  District  Court  awarded  costs  against  the  libel- 
lant on  dismissing  the  libel  for  want  of  jurisdiction,  no 
costs  will  be  awarded  against  him  in  the  Circuit  Court 
on  an  affirmance  of  that  decree.^ 

Where  the  judgment  is  reversed,  the  appellant  is 
entitled  to  costs.^ 

In  a  salvage  case,  the  court,  in  its  discretion,  may 
charge  the  costs  upon  the  property  saved.^ 

Where  the  decree  of  the  District  Court  is  reversed 
on  the  production  of  new  proofs,  and  no  reason  is  given 

1  Tome  r.  Four  Rafts  of  Lumber,  •  Agnew  v.  Dorman,  Taney,  386. 
Taney,  533.  *  The  McDonald,  4  Blatchf .  477. 

2  The  Henry  Ewbank,  1  Sumn.         «  Ibid. 

400;   Citizens'  Bank  v.    Nantucket         «  The  Margaret  v.  The  Connes- 

Steamboat  Co.,  2  Story,  16;  The  toga,  2  Wall.  Jr.  116. 
Margaret    v."  The    Counestoga,    2         '  The  Boston,  1  Sumn.  328. 
Wall.  Jr.  116. 


COSTS  AND  FEES.  285 

why  they  were  not  produced  in  the  court  below,  neither 
party  will  recover  against  the  other  costs  on  appeal.^ 

If  the  claimant  succeeds  in  establishing  the  defence 
set  up  in  his  answer,  he  is  entitled  to  costs  in  the  Circuit 
Court.=^ 

Where  the  decree  is  refonned,  no  costs  may  be  al- 
lowed to  either  party .^ 

By  section  968  of  the  United  States  Revised  Statutes, 
it  is  provided  that  when  in  a  Circuit  Court  a  libellant, 
upon  his  own  appeal,  recovers  less  than  the  sum  of 
$300,  exclusive  of  costs,  he  shall  not  be  allowed,  but, 
at  the  discretion  of  the  court,  may  be  adjudged,  to  pay 
costs. 

When  the  case  is  reversed  in  favor  of  the  libellant 
upon  a  ground  not  urged  below,  it  will  be  without 
costs.* 

The  matter  of  costs  is  not,  per  se^  the  proper  subject 
of  an  appeal,  but  it  can  be  taken  notice  of  only  incident- 
ally as  connected  with  the  principal  decree  when  the 
correctness  of  the  latter  is  directly  before  the  court.^ 

The  allowance  or  non-allowance  of  costs  is  not  a  sub- 
ject of  appeal.® 

The  appellate  court  will  not  interfere  with  the  decree 
as  to  costs,  unless  under  peculiar  circumstances.^ 

Section  978  of  the  United  St<ates  Revised  Statutes 
provides  that  when  proceedings  are  had  before  a  court 
of  the  United  States  or  of  the  Territories,  on  several 
libels  against  any  vessel  and  cargo,  which  might  legally 

1  Reed  v.  Hussey,   1   Bl.  &  H.  ♦  Dupont  v.  Vance,  19  How.  162. 

525;  Carrigan  v.  Pittnan,  1  Wall.  *  United    States  v.   The  Malek 

Jr.  307.  Adhel.  2  How.  210. 

'  Macomber    v.    Thompson,     1  •  Jordan    r.   Woods  et   als.,  8 

Suran.  384.  Woods,  148. 

'  Vemard  r.  Hudson,  i  Sumn.  ">  United  States  v.   The   Malek 

405;  The  Underwriter,  4  Blatchf.  Adhel,  2  How.  210. 
94. 


286  ADMIRALTY  LAW. 

be  joined  in  one  libel,  there  shall  not  be  allowed  thereon 
more  costs  than  on  one  libel,  unless  special  cause  for 
libelHng  the  vessel  and  cargo  separately  is  satisfac- 
torily shown  on  motion  in  open  court. 

Where  unnecessary  libels  or  claims  are  filed,  it  is  at 
the  peril  of  paying  costs.^ 

There  is  nothing  in  the  language  of  this  section 
which  leads  to  the  conclusion  that  where  several  per- 
sons have  a  like  cause  of  action  founded  on  a  seve- 
ral liability  to  each,  and  not  on  a  joint  liability  to 
all,  they  must  join  under  a  penalty  of  a  forfeiture  of 
costs  .^ 

By  U.  S.  Rev.  Stat.  §  982,  it  is  provided  that  if  any 
attorney,  proctor,  or  other  person  admitted  to  conduct 
causes  in  any  court  of  the  United  States,  or  of  any 
Territory,  appears  to  have  multiplied  the  proceedings 
in  any  cause  before  such  court,  so  as  to  increase  costs 
unreasonably  and  vexatiously,  he  shall  be  required,  by 
order  of  the  court,  to  satisfy  any  excess  of  costs  so 
increased. 

No  costs  can  be  awarded  to  either  party  when  a  case 
is  dismissed  for  want  of  jurisdiction,  for  where  there  is 
no  power  to  adjudicate  upon  the  merits  there  is  no 
power  to  award  costs. 

If  a  decree  is  affirmed,  interest  for  the  delay  may  be 
allowed  on  the  costs  as  well  as  on  the  amount  of  the 
decree.^ 

In  the  unreported  case  of  The  Louisiana,  in  the 
Eastern  District  of  Louisiana,  April  term,  1881,  al- 
though the  District  Court  had  awarded  six  per  cent 
salvage  on  $700,000,  the  value  of  said  steamship  and 
her  salved  cargo,  and  although  on  appeal  to  the  Circuit 

^  The  Henry  Ewbank,  1  Sumn.  ^  jije  Young  Mechanic,  3  "Ware, 
400.  58. 

8  The  Wanata,  95  U.  S.  600. 


COSTS  AND  FEES.  287 

Court  by  claimants  as  well  as  libellants  and  interveners, 
the  circuit  justice  decreed  only  four  and  a  half  per  cent 
salvage  on  said  value,  yet  the  circuit  justice.  Woods, 
decreed  that  the  claimants  pay  all  costs  of  this  case 
both  in  the  District  Court  and  in  the  Circuit  Court, 
and  that  no  part  of  said  costs  should  be  taken  from  the 
sum  awarded  to  the  libellants  and  interveuors. 

The  costs  of  a  salvage  cause  are  (except  as  regulated 
by  the  rules  hereinafter  cited)  in  the  discretion  of  the 
court. 

Although  they  may  not  necessarily  be  given  to  the 
successful  party ,^  yet  generally  they  follow  the  event, 
and  where  a  claim  for  salvage  fails,  the  plaintiffs  may 
be,  and  on  many  occasions  have  been,  ordered  to  pay 
them  ;  ^  and  the  more  especially  if  the  case  set  up  by 
the  salvors  turn  out  to  be  a  false  or  fraudulent  one.^ 

Salvors  who  have  been  guilty  of  misconduct  may,  as 
has  already  been  pointed  out,  not  only  forfeit  their 
claims  for  salvage,  but  be  also  condemned  to  pay  the 
costs  of  the  defendants.* 

And  in  cases  where  the  court  did  not  consider  the 
misconduct  of  the  salvors  [as,  for  instance,  where  they 
obtruded  their  services  after  being  discharged,  or  pre- 
vented further  assistance  being  given  to  the  vessel]  to 

1  See  The  North  Star,  Lush.  45-  The  St.  Lawrence,  7  Notes  of  Cases, 

51;  The  William,  Lush.  182;  The  550;  The  Laurel,  Br.  &  L  191;  The 

Ironsides,   Lush.  4.')8-467;  The  Jo-  Apollo,  1  Ilagg.  300-319. 

hannes.    Lush.    182;    The    Kepler,  «  The  Lady  Esridia,  Lush.  51-3; 

Lush.  201;  The  Albatross,  1  Spiuks,  The   Edward  Hawkins,  Lash.  515; 

175,  n. ;  The  Trident,  1  Spinks,  224,  The   Nyniphe,   5   L.  T.  N.  8.305; 

n.  (a);  The  Catalina,  2  Spinks,  23,  The  Duke  of   Manchester,  10  Jur. 

The   Golubchick,   1  W.  Rob.    143;  803,  The  London,  Br.  &  L.  82. 

The  Diana,  32  L.  J.  Adm.  67?  The  •  The  Giacouio.   3   Hajjg.   344; 

Fortitude,  2  W.  Rob.  217-225;  The  The  Susannah,  3  Hagp.  345.  n. 

Lord   Auckland,   2   W.   Rob.   301;  *  The  Lady  Catherine  Barham, 

The  Gla.sgow  Packet,   2  \V.   Rob.  5  L.  T.  n.  8.'  093.     See  also   The 

800;  The  Nicolina,  2  W.  Rob.  175;  Joseph  Harvey,  1  C.  Rob.  306. 
The   North  American,  Swa«  466; 


288  ADMIRALTY  LAW. 

be  of  so  serious  a  nature  as  to  occasion  a  forfeiture  of 
all  salvage  remuneration,  it  has,  nevertheless,  punished 
them  by  awarding  only  two-thirds  of  their  costs,^  or  a 
fixed  sum,  nomine  expensariim,  instead  of  costs.^ 

Where  one  of  the  crew  of  a  salving  vessel  libelled 
the  saved  property  to  recover  his  share  of  the  salvage, 
and  a  motion  was  made  to  compel  him  to  file  security 
for  costs,  upon  the  ground  that  the  salvage  had  been 
paid  to  the  master:  held,  that  in  the  absence  of  an 
agreement  on  the  part  of  the  seaman  to  waive  his 
right  to  salvage,  he  would  not  be  compelled  to  give 
security  for  costs.^ 

See  also  The  Magdalen,  5  L.  T.  n.  s.  807-809.  See 
The  Nautilus,  Swa.  105,  where  salvors,  who,  after  an 
award  by  consent  before  justices,  commenced  a  suit 
in  the  admiralty  court,  and  accepted  a  tender  of  the 
amount  that  the  justices  had  awarded,  were  condemned 
in  damages  and  costs  ;  and  The  Gloria  de  Maria,  Swa. 
106,  where  salvors,  who,  after  appealing  from  the  award 
of  Cinque  Ports  commissioners,  instituted  a  suit,  and 
arrested  the  vessel,  were  also  condemned  in  costs,  dam- 
ages, demurrage,  and  expenses.  See  also  The  Bell  of 
Lagos,  L.  R.  2  Adm.  345 ;  20  L.  T.  n.  s.  1019 ;  The 
Margaret  and  Jane,  38  L.  J.  Adm.  381. 

The  indulgence  which  the  court  of  admiralty  has  al- 
ways shown  to  salvors,  however,  and  the  expediency  of 
encouraging  their  exertions,  which  it  has  always  recog- 
nized, has  frequently  induced  it  to  act  leniently  towards 
them  in  awarding  costs. 

In  The  Princess,*  Dr.  Lushington  observes  :  "  It  has 

1  The  Glory,  14  Jur.  676.  *  3  W.  Rob.  138-143.     See  also 

2  The  Glasgow  Packet,  2  W.  The  William,  5  Notes  of  Cases, 
Rob.  306-314.  108. 

8  The    Cetewayo;  7   Fed.  Rep. 
128  (1881). 


COSTS  AND  FEES.  289 

been  the  policy  of  the  maritime  law  of  this  country, 
from  the  earliest  times,  to  countenance  and  favor  this 
meritorious  class  of  persons,  and  nothing  I  conceive 
would  be  more  contrary  to  that  policy,  or  more  likely 
to  damp  the  energies  of  salvors  in  general,  than  the 
frightening  them  from  a  recourse  to  this  court  by  a 
rigid  application  of  the  principle  of  costs."  The  court 
has,  therefore,  not  only  dismissed  suits  on  many  oc- 
casions without  costs  as  against  the  plaintiffs,^  but  it 
has,  under  special  circumstances,  even  allowed  the  sal- 
vor whose  claim  it  rejected  the  costs  of  the  proceed- 
intj^s  as  ao:ainst  the  owner.^ 

If  the  defendants  tender  to  the  salvors,  and  pay  into 
court,  a  sum  subsequently  held  to  be  sufficient,  and  the 
salvors  notwithstanding  proceed  with  their  suit,  they 
will  be  condemned  in  costs  ;  ^  and  where  after  an  offer 
of  £80  was  refused  by  the  claimants,  and  a  tender 
of  £30  only  was  made,  and  the  court  subsequently 
awarded  £50,  it  nevertheless  refused  to  give  the  sal- 
vors costs.* 

If,  however,  there  are  unusual  circumstances  involved 
in  the  case,  the  court  is  unwilling  to  apply  the  doctrine 
of  costs  after  tender  against  salvors.  Dr.  Lushington 
in  one  case  observes  :  "  There  is  in  the  very  nature  of 
salvajje  services  somethinj?  so  loose  and  indefinite,  and 
so  difficult  to  be  determined  by  the  best-constituted 
ininds  when  looking  at  their  own  case,  that  I  am  not 
inclined  to  press  the  doctrine  to  its  full  extent."  ^ 

1  The  Little  Joe,  Lush.  88;  The  The  Frances  and  Eliza,  2  Doda.  115- 

Johannes,  30  L.  J.    Adra.   91-95;  121 ;  The  Vine,  2  Ilagg.  1-3. 
The  Dygden,  1  Notes  of  Cases,  115-         »  The  Cargo  ex  Honor,  L.  R.  1 

118;  The   Upnor,  2  Hagg.  3;  The  Adm.  87;  The  Batavier,  1   Spinks, 

Zephyr,  2  Hagg.  43-48;  The  Mul-  169;  The  Paris,  1  Spinks,  289;  The 

grave,  2  Hagg.  77;  The  Harriot,  1  Black  Boy,  3  Hagg.  386,  n. 
W.  Rob.  439-447.  *  The  Hedwig,  1  Spinks,  19-24. 

«  The  Ranger,  9  Jur.  119,  120;         »  The  William,  5  Notes  of  Caaes, 

19 


290  ADMIRALTY  LAW. 

The  court  will  not  ordinarily,  however,  in  such  a 
case,  grant  costs,  as  it  would  be  holding  out  an  induce- 
ment to  salvors  to  reject  adequate  tenders.^ 

The  tender  must  either  offer  to  pay  the  costs  of  the 
salvor,  or  state  the  grounds  on  which  the  payment  is 
resisted.^ 

Notwithstanding  respondent  in  a  cause  of  salvage 
makes  a  tender  which  is  adjudged  sufficient,  yet  if  it 
is  not  so  liberal  but  that  the  salvor  might  reasonably 
prosecute  the  suit  in  expectation  of  obtaining  a  larger 
award,  the  court  has  power,  in  the  exercise  of  a  sound 
discretion,  to  allow  him  costs  of  proceedings  after  the 
tender.  But  the  general  rule  is  that  a  sufficient- tender 
throws  after-costs  on  libellant.^ 

In  the  case  of  the  Salvor  Wrecking  Co.  v.  Sectional 
Dock  Co.,*  the  decree  below  against  the  Dock  Com- 
pany was  reversed  and  the  libel  dismissed  as  to  all  the 
respondents ;  but  as  the  question  of  jurisdiction  was 
not  raised  until  after  the  proofs  were  taken,  each  party 
was  condemned  to  bear  the  costs  he  had  incurred,  ex- 
cept that  the  costs  in  the  Circuit  Court  were  decreed 
by  Dillon,  Circuit  Judge,  to  be  paid  by  the  libellants. 

In  The  Red  Rover,^  an  action  was  entered,  after  five 
or  six  months,  for  £120.  The  value  of  the  vessel  was 
£100. 

The  judge  said :  "  This  is  a  case  of  the  simplest  de- 
scription, and  ought  to  have  been  settled  on  the  spot. 

1  think  I  am  bound  to  allot  something  by  way  of  sal- 
vage.    I  award  <£5  ;  but  I  will  give  no  costs." 

So,  in  Peisch  v.  Ware,  4  Cranch,  347. 

108-110.     See  also  The  Hopewell,         s  Lubker  v.  The  N.  H.  Quimby, 

2  Spinks,  249.  8  Reporter,  806. 

1  The  Hopewell,  ubi  supra ;  The  *  Central  Law  Journal,  640  (St. 
Sovereign,  Lush.  85.  Louis,  Oct.  6,  1876),  unreported  in 

2  The  Hickman,  L.  R.  3  Adm.  Dillon's  Reports. 
15.  «  3  W.  Rob.  150. 


COSTS  AND  FEES.  291 

See  Admiralty  Rule  25,  Appendix,  and  authority 
there  cited,  as  to  stipulation  of  defendant  for  costs. 

See  Admiralty  Rule  20,  Appendix,  where  a  claim  is 
put  in. 

See  Admiralty  Rule  28,  Appendix,  and  authority 
there  cited,  as  to  costs  on  insufficient  answer. 

See  Admiralty  Rule  34,  Appendix,  and  authorities 
there  cited,  that  intervenor  must  give  stipulation  for 
costs. 

As  to  costs  on  allowance  of  exception  to  answer,  see 
Admiralty  Rule  36,  Appendix,  and  authority  there 
cited. 

As  to  security  by  respondent  on  cross-libel,  see  Ad- 
miralty Rule  53,  Appendix. 

Where  a  fair  tender  is  offered,  the  refusal  of  it 
may  subject  the  party  who  refuses  to  accept  it  to  the 
loss  of  his  costs,  and  sometimes  to  the  payment  of  costs 
to  the  other  party .^ 

As  to  taxation  of  costs,  see  U.  S.  Rev.  Stat.  §  823. 

See  General  Rule  24,  par.  1,  of  the  Supreme  Court, 
Appendix,  and  authority  there  cited,  as  to  costs  on  dis- 
missal except  for  want  of  jurisdiction. 

See  the  same  Rule,  par.  2,  Appendix,  and  authority 
there  cited,  as  to  costs  on  affirmance. 

See  the  same  Rule,  par.  3,  Appendix,  and  authority 
there  cited,  as  to  costs  on  reversal. 

As  to  exemption  of  United  States  for  costs,  see  the 
same,  par.  4,  Appendix. 

The  party  who  fails  in  any  suit,  except  under  pecu- 
liar circumstances,  should  pay  the  whole  of  the  costs.'^ 

A  court  of  admiralty  may,  at  the  instance  of  a  party, 
and  without  letters  of  request,  enforce  a  decree  in  perm- 

»  Dunlap    Practice,    104 ;    Ben.         •  The  Christina,  8  Jur.  321. 
Adra.  §  552,  p.  326;  2  Conk.  Adm. 
442. 


292         "  ADMIRALTY  LAW. 

nam  for  the  payment  of  costs  rendered  by  an  admiralty 
court  in  another  district.^ 

Expenses  incurred  under  a  lawful  order  of  court 
may  be  taxed  as  part  of  the  costs  and  inserted  as  part 
of  the  judgment  against  the  losing  party .^ 

The  costs  of  the  reference  as  to  damages  in  an  action 
of  damage  do  not  follow  the  costs  of  the  action,  but 
are,  in  the  discretion  of  the  judge,  as  the  costs  of  a  fresh 
litigation.^ 

Where  both  parties  appealed,  and  each  had  partial 
success,  no  costs  in  Circuit  Court  allowed  to  either 
party.* 

Section"  TL  — FEES. 

By  section  824  of  the  United  States  Revised  Statutes 
it  is  provided  that,  on  a  final  hearing  in  admiralty,  a 
docket  fee  of  twenty  dollars  shall  be  taxed  and  al- 
lowed to  the  proctor.  But  nothing  herein  shall  be  con- 
strued to  prohibit  the  proctors  from  charging  to  and 
receiving  from  their  clients  such  reasonable  compensa- 
tion for  their  securities,  in  addition  to  taxable  costs,  as 
may  be  in  accordance  with  general  usage  in  their  re- 
spective States,  or  may  be  agreed  upon  between  the 
parties.  But  if  libellant  recovers  less  than  fifty  dol- 
lars, his  proctor's  fee  shall  be  ten  dollars.  For  each 
deposition  taken  and  admitted  in  evidence  in  a  cause, 
two  dollars  and  fifty  cents.  For  services  tendered  in 
cases  removed  from  a  District  Court  to  a  Circuit  Court 
by  writ  of  error  or  appeal,  five  dollars. 

1  Pennsylvania  R.  R.  Co.  v.  Gil-  «  The  Consett,  5  P.  D.  77;  2 
hooley,  9  Fed.  Rep.  618.  Law    Reports    Digest,     1865-1880 

2  NefE  V.    Pennoyer,   3  Sawyer,     (London,  1882),  p.  2917. 

336;  Simpson  v.  One  Hundred  and  *  Elliot  v.  The  Leipsic,  U.  S.  Cir. 
Ten  Sticks  of  Hewn  Timber,  7  Fed.  Ct.  S.  D.  New  York,  13  Law  Re- 
Rep.  245.  porter,  No.  9,  p.  264  (Boston,  1882). 


COSTS  AND  FEES.  293 

Courts  of  admiralty  cannot  properly  allow  counsel 
fees  to  the  counsel  of  the  gaining  side  in  admiralty,  as 
an  incident  to  the  judgment,  beyond  the  costs  and  fees 
allowed  by  statute.^ 

In  the  district  of  Louisiana  the  practice  is  to  allow 
the  docket  fee  to  the  proctor  for  the  successful  party. 

And  where  two  or  more  libels  are  filed  by  different 
proctors,  only  one  docket  fee  is  allowed,  and  that  is 
given  to  the  proctor  prior  in  time  in  filing  his  libel. 

The  docket  fee  of  twenty  dollars  is  the  highest  com- 
pensation allowed  to  an  attorney  in  a  cause,  and  it  can 
be  allowed  but  once.^ 

The  docket  fee  of  twenty  dollars  may  be  allowed,  al- 
though the  libellant  discontinues  the  suit  after  a  wit- 
ness has  been  sworn.  The  fee  does  not  depend  upon 
a  judgment  or  decree,  but  is  taxable  on  a  trial  or 
final  hearing.  It  is  taxable  whenever  the  trial  is  en- 
tered upon  by  the  swearing  of  a  jury  in  a  common- 
law  case,  or  by  the  introduction  of  testimony  or  the 
final  opening  of  the  argument  upon  a  final  hearing  in 
equity  or  admiralty.' 

Proctors  have  a  lien  for  their  costs.* 

In  the  case  of  The  Bay  City,*  Brown,  D.  J.,  said  :  — 

I  think  the  fee  is  taxable  whenever  the  trial  is  entered 
upon  by  the  swearing  of  a  jury  in  a  common-law  case,  or  by 
the  introduction  of  testimony  or  the  final  opening  of  the 
argument  upon  a  final  hearing  in  equity  or  admiralty.  The 
fee  is  not  made  by  the  statute  to  depend  upon  a  judgment  or 
decree,  but  is  taxable  on  a  trial  or  final  hearing.  As  the 
labor  for  which  the  docket  fee  is  supposed  to  be  a  compen- 
sation is  performed  on  or  before  the  trial,  equitably  the  party 

1  The  Baltimore,  8  Wall.  377.  »  The  Bay  City,  3  Fed.  Rep.  47. 

•  Troy  I.   &  N.  Factory  r.  Com-  *  The  Araininta,  Swa.  81. 

ing,  7    Blatchf.    16;    Dedekam  v.  »  3  Fed.  Rep.  47  (1880). 
Vose,  3  Blatchf.  77. 


294  ADMIRALTY  LAW. 

ought  not  to  lose  the  benefit  of  it  by  a  discontinuance  entered 
after  the  trial  or  hearing  has  begun.  In  New  York  the  prac- 
tice seems  to  be  to  allow  it  upon  a  final  disposition  of  the 
cause,  even  without  a  trial  or  hearing.^ 

It  is  proper  for  the  clerk  to  charge  for  including  the 
evidence  in  a  suit  in  admiralty  in  the  final  record,  on 
final  decree,  notwithstanding  the  provision  of  sec- 
tion 1  of  the  act  of  Feb.  16,  1875  (18  U.  S.  Stat, 
at  Large,  315),  in  regard  to  appeals  in  admiralty  to 
the  Supreme  Court.^ 

As  regards  the  fees  of  the  clerk,  see  the  United 
States  Ke vised  Statutes,  §  828. 

As  to  the  marshal's  fees,  see  United  States  Revised 
Statutes,  §  829. 

Under  section  829  of  the  Revised  Statutes  the  mar- 
shal is  entitled  to  his  commissions,  when,  after  a  seizure 
in  admiralty,  the  suit  is  settled,  though  without  an 
order  of  sale.  The  commissions  will  be  computed  upon 
the  amount  paid  in  settlement.^ 

^  Hayford  v.  Griffith,  3  Blatchf.         «  The   Clintonia,  11  Fed.  Rep. 

79.  740,  by  Billings,  D.  J.,  April,  1882, 

^  The  Alice  Tainter,  14  Blatchf.  reported    by    Joseph    P.     Horner, 

225.  Esq.,  of  the  New  Orleans  Bar. 


APPEAL.  295 


CHAPTER  Xn. 

APPEAL. 

Skction  L  — appeals  FROM  DISTRICT  COURT  TO  CIRCUIT 

COURT.  , 

From  all  final  decrees  of  a  District  Court  in  causes  of 
equity  or  of  admiralty  and  maritime  jurisdiction,  except 
prize  causes,  where  the  matter  in  dispute  exceeds  the 
sum  or  value  of  fifty  dollars,  exclusive  of  costs,  an  ap- 
peal shall  be  allowed  to  the  Circuit  Court  next  to  be 
held  in  such  district,  and  such  Circuit  Court  is  required 
to  receive,  hear,  and  determine  such  appeal.^ 

The  appeal  must  be  joint  where  the  interest  is  joint, 
and  several  where  there  are  distinct  and  separate  in- 
terests represented  by  independent  parties  in  the  same 
suit.^ 

If  a  provisional  decree  awards  a  certain  sum  to  libel- 
lant,  with  leave  to  either  party  to  take  an  order  of  ref- 
erence to  a  commissioner  to  ascertain  the  sum  really 
due,  no  appeal  lies  therefrom.^ 

A  decree  which  directs  the  charges  and  expenses  of 
keeping  and  selling  the  property  and  the  fees  and 
charges  of  the  officers  to  be  deducted  from  the  pro- 

^  Mordecai  v.  Lindsay,  19   How.         «  Thomas  v.   Lane,  2  Sumn.   1. 

200;  Montgomery  v.  Anderson,  21  See  also  Federal  Piactice,  by  Field 

How.   3S8;  United   States  r.  Won-  &  Miller,  pp.  123-125. 
son,  1  Gall.  6;  McLellan  r.  United         •  The  Yuba,  4  Blatchf.  314. 
States,  1  Gall.  229 ;   Brig  llollen,  1 
Mass.  434;  U.  S.  Rev.  Stat.  §  63L 


296  ADMIRALTY  LAW. 

ceeds,  but  leaves  the  fees,  charges,  and  expenses,  and 
the  share  of  each  party  to  be  ascertained,  is  an  inter- 
locutory decree,  and  no  appeal  will  lie  from  it.^ 

An  application  for  a  rehearing  being  an  application 
to  the  conscience  and  discretion  of  the  court  which 
made  the  decree,  is  not  the  legitimate  subject  of  an 
appeal.^ 

In  the  case  of  The  Illinois,^  Wilkins,  J.,  said  :  "  Claim- 
ants' counsel  took  an  appeal  to  the  Circuit  Court.  This 
appeal  was  dismissed,  on  the  ground  that  an  appeal 
would  not  lie  upon  a  decree  by  default." 

An  appeal  from  the .  District  Court  to  the  Circuit 
Court  only  lies,  under  section  631  of  the  Revised 
Statutes  of  the  United  States,  when  the  decree  of  the 
former  court  is  final. 

The  granting  or  refusal  of  an  injunction  is  in  the 
discretion  of  the  court,  and  such  interlocutory  orders 
are  not  appealable.* 

The  decree  must  be  final,  and  the  matter  in  dispute 
must  exceed  the  value  of  fifty  dollars,  exclusive  of 
costs.  The  appellant  must  have  both  these  points  in 
his  favor.^ 

Where  a  libel  claims  three  hundred  dollars  damage, 
and  a  decree  is  given  for  libellant  for  forty  dollars,  in 
which  he  acquiesces,  the  respondent  cannot  appeal  to 
the  Circuit  Court.^ 

Where  salvors  united  in  a  claim  for  a  single  salvage 
service,  jointly  rendered  by  them,  the  owner  of  the 
property  is  entitled  to  an  appeal  where  the  sum  de- 
creed   exceeds    $5,000,   although   the    Circuit    Court 

1  The  New  England,  3  Sumn.  Fed.  Rep.  763  (see  note  by  the 
495.  editor). 

2  The  Enterprise,  3  Wall.  Jr.  58.         ^  Davis  v.  The  Seneca,  Gilp.  34. 
«  1  BroM'n,  14.  ^  Greigg  v.  Reade,  Crabbe,  64. 

*  Norton  v.  Hood  and  Others,  12 


APPEAL.  297 

deemed  it  proper  to  apportion  the  recovery  among 
the  salvors  according  to  their  respective  merits.* 

An  appeal  to  the  Circuit  Court,  from  the  decree  of 
the  District  Court,  in  a  case  in  admiralty,  carries  up 
the  whole  fund.^ 

If  the  libellant  does  not  in  his  libel  claim  more  than 
fifty  dollars,  he  cannot  appeal  from  a  decree  dismissing 
the  libel,  although  the  evidence  shows  that  he  was  en- 
titled to  recover  more  than  that  sum,* 

An  appeal  in  the  admiralty  has  the  effect  to  super- 
sede and  vacate  the  decree  from  which  it  is  taken.  A 
new  trial,  completely  and  entirely  new,  with  other  testi- 
mony and  other  pleadings,  if  necessary,  or  if  asked  for, 
is  contemplated,  —  a  trial  in  which  the  judgment  of  the 
court  below  is  regarded  as  if  it  had  never  been  made.* 

In  The  Swedish  Bark  Adolpli,*  it  was  held,  on  appeal 
to  the  Circuit  Court  from  a  decree  of  the  District  Court 
dismissing  the  libel,  that  the  claimant  of  the  vessel 
which  was  attached  on  service  of  the  monition  is  not 
entitled  to  have  her  released,  or  to  a  bond  from  the  li- 
bellants  to  pay  such  damages  as  the  claimant  may  sus- 
tain by  reason  of  her  detention  pending  the  appeal,  in 
case  the  libel  shall  be  dismissed  in  the  appellate  court. 
To  hold  otherwise  would  be  inconsistent  with  Admiralty 
Rule  11.  Unless  the  attachment  was  mala  fide ,  or  there 
was  gross  negligence  amounting  to  bad  faith,  no  dam- 
ages for  her  detention  caused  by  such  arrest  can  be 
recovered.  ^ 

If  the  appeal  is  taken  before  the  surrender  of  the 

»  The    Connemara,   103    U.    S.         »  5  Fed.  Rep.  114  (1880).  citing 

(18  Otto)  754.  The  Evangelisiinos,  Swa.  ."ITS;  8.  c. 

«  The  Lady  Pike,  90  U.  S.  (6  12  Moore  P.  C.  C.  358;  The  D.  S. 

Otto)  461.  and   Peri,  Lush-  543;  The   Strath- 

•  Agnew  F,  Dornaan,  Taney,  386.  naver,  L.  R.  1   Ap.  Cases,  58;  The 

*  The    Lucille,     19    Wall.    73;  Active,   5  Law  Times,    x.  8.  773; 
Yeaton  r.  The    United    States,   5  The  Amelia,  Moore  P.  C.  C.  («ic). 
Cranch,  281. 


298  ADMIRALTY  LAW. 

vessel  by  the  marshal,  and  a  bond  is  filed  within  the 
time  allowed  by  law,  the  Circuit  Court  obtains  jurisdic- 
tion although  the  vessel  is  not  in  its  possession.^ 

When  an  appeal  is  taken,  the  res  is  transmitted  to 
the  Circuit  Court.^ 

Where  the  appeal  is  regular,  the  funds  belonging  to 
the  case  must  be  transferred  to  the  Circuit  Court,  with 
the  papers,  as  the  court  below  has  no  longer  any  con- 
trol over  them.^ 

Any  discharge  by  the  District  Court  of  the  persons 
in  whose  custody  the  funds  may  be  after  an  appeal  is  a 
nullity.* 

If  the  vessel  is  released  on  stipulation,  an  appeal 
takes  the  stipulation  into  the  Circuit  Court,  and  a  de- 
cree may  there  be  entered  against  the  stipulators.^ 

The  appeal  bond  follows  the  cause  into  the  Circuit 
Court,  and  upon  the  afl&rmance  of  the  decree  it  may 
be  enforced  there  in  the  same  manner  as  in  the  District 
Court.^ 

"  An  appeal  by  any  parties  interested  in  the  distribu- 
tion of  salvage,  as  to  their  shares,  brings  up  incidentally 
a  review  of  the  whole  decree,  so  far  as  the  distribution 
is  concerned."^ 

The  evidence  taken  in  the  District  Court  is  reduced 
to  writing,  and  forms  a  part  of  the  proceedings.^ 

1  The  Rio  Grande,  23  Wall.  458;         ^  The  Lady  Pike,  96  U.  S.  461 ; 

Otis  ».  The  Rio  Grande,  1  Woods,  Dutcher  i;.  Woodhull,  7  Ben.   313; 

'279.  McLellan  v.  United  States,  1  Gall. 

»  United  States  v.  Towns,  7  Ben.  227;  Nelson  v.  United  States,  1  Pet. 

444;  The  Grotius,  1  Gall.  503.  C.  C.  235;  The  Wanata,  95  U.  S. 

«  Hayford  v.  Griffith,  3  Blatchf.  600. 
34;  The  Lottawana,  20  Wall.  201;         «  The  Wanata,  95  U.  S.  600. 
The  Collector,  6  Wheat.  194.  "^  See    The    Henry    Ewbank,    1 

*  Hayford  v.  Griffith,  3  Blatchf.  Suran.  400;  The  Lady  Pike,  96  U.  S. 

34;  The  Grotius,  1  Gall.  503;  The  46L 

Collector,  6  Wheat.  194;  Penhallow         8  Folger  v.    Shaw,  2  W.  &  M. 

V.  -Doane,  3  Dall.  54;   Davis  v.  The  531. 
Seneca,  Gilp.  34. 


APPEAL.  299 

If  a  note  was  surrendered  in  the  District  Court,  it 
should  appear  in  the  record  by  whom  it  was  produced, 
and  for  what  purpose.* 

On  an  appeal,  the  District  Court  is  divested  of  juris- 
diction over  the  res  and  its  proceeds,  and  the  Circuit 
Court  is  invested  with  exclusive  authority  over  the 
same. 

The  first  authority  to  which  I  will  refer  is  a  decision 
of  Judge  Story  in  the  case  of  The  Grotius,  1  Gall, 
p.  503.  On  the  lower  part  of  page  505  that  learned 
jurist  states  the  law  very  clearly,  as  follows  :  — 

On  the  whole,  I  am  satisfied  that  after  an  appeal  the 
property  is  removed  from  the  legal  custody  of  the  District 
Court,  and  is  no  longer  subject  to  its  interlocutory  orders. 

This  decision  was  affirmed  by  the  Supreme  Court  of 
the  United  States,  in  the  case  of  The  Collector,  6 
Wheat,  p.  203,  where  Mr.  Justice  Livingston  rendered 
the  decision  as  follows  :  — 

By  an  appeal  from  the  sentence  of  the  District  Court  to  a 
Circuit  Court,  the  latter  becomes  possessed  of  the  cause,  and 
executes  its  own  judgment  without  any  intervention  of  the 
former.  It  is  fit,  therefore,  that  the  proceeds  of  tlie  property, 
if  it  have  been  converted  into  money,  should  follow  the  ap- 
peal into  the  Circuit  Court,  and  be  deposited  in  such  bank, 
or  other  place,  as  it  may  direct,  there  to  remain,  subject  to 
the  disposition  and  direction  of  the  Circuit  Court ;  and  if  the 
property  at  the  time  of  the  appeal  remain  in  specie  in  the 
marshal's  custody,  and  any  order  or  direction  shall  become 
necessary  for  its  sale  or  preservation  after  au  appeal,  such 
order  must  emanate  from  the  Circuit  Court. 

The  proceeds,  therefore,  of  The  Collector  and  cargo,  at  the 
time  of  filing  the  present  petition  and  libel,  even  if  the  order 
of  the  District  Court  in  relation  to  them  bad  been  complied 

*  Reppert  r.  Robinson,  Taney,  492. 


300  ADMIRALTY  LAW. 

with,  could  not,  after  the  appeal,  be  regarded  as  in,  or  under, 
the  control  of  the  District  Court,  which  was  therefore  incom- 
petent, when  this  petition  was  filed,  to  make  any  order  re- 
specting them. 

It  was  held  by  Judge  Hopkinson,  in  the  case  of  Davis 
&  Brooks  V.  The  Seneca,  Gilpin,  p.  40,  that,  '•  being  re- 
moved from  this  court,  it  [the  property]  must  follow  the 
appeal,  and  passes  at  once  into  the  custody  of  the  Supe- 
rior or  Circuit  Court,  to  whom  any  application  about 
the  disposition  of  it  must  be  made." 

Again :  the  Supreme  Court  of  the  United  States 
say,  in  the  case  of  Montgomery  v.  Anderson,  21 
How.  p.  388 :  "  The  appeal  carries  up  the  res  or 
money  in  the  registry  of  the  District  Court  to  the 
Circuit  Court ;  and  when  the  rights  of  the  parties  are 
adjudicated  there,  the  court  must  carry  into  execution 
its  own  decree." 

And  it  is  again  laid  down  by  the  Supreme  Court  of 
the  United  States,  in  the  case  of  The  Lady  Pike,  96 
U.  S.,  foot  of  p.  465,  that  "  the  rule  is  universal,  that 
an  appeal  from  a  District  Court  to  a  Circuit  Court 
carries  up  the  whole  fund." 

Mr.  Justice  Nelson,  in  Heyford  v.  Griffith,  3  Blatchf. 
p.  36,  said  :  — 

Where  the  appeal  is  regular,  so  as  to  bring  up  the  case 
into  this  court,  the  funds  belonging  to  the  case  must  be  trans- 
ferred to  this  court  with  the  papers,  as  the  court  below  has  no 
longer  any  control  over  them;  and  any  discharge  by  that  court 
or  any  of  its  officers,  of  the  persons  in  whose  custody  the 
funds  may  be,  is  a  nullity.  This  court,  from  the  time  the 
appeal  takes  effect,  is  responsible  for  the  safe-J^eeping  of 
the  funds,  and  for  their  application  in  behalf  of  the  party  who 
shall  ultimately  be  found  to  be  entitled  to  them.  The  court 
below  has  no  longer  any  jurisdiction  over  the  case  or  any  of 
its  incidents  ',  and  it  is  the  duty  of  the  clerk  of  this  court  in 


APPEAL.  301 

cases  of  appeal,  where  there  is  a  fund  in  the  court  below,  to 
obtain  a  transfer  of  the  same,  and  to  inquire  into  its  state  and 
condition  and  report  the  same  to  this  court 

In  the  case  of  The  Lottawana,  20  Wall.  p.  201,  the 
United  States  Supreme  Court  says,  near  the  foot  of 
p.  225,  that  if  the  proceeds  have  been  paid  over,  they 
should  be  recalled,  if  practicable,  and  restored  to  the 
registry. 

If  both  parties  for  a  long  time  treat  an  appeal  as 
valid,  one  of  them  cannot  then  have  it  dismissed.^ 

A  party  who  did  not  appeal  from  a  decree  of  the 
District  Court  cannot  question  the  correctness  of  the 
decree.^ 

If  the  libellant,  in  a  case  where  the  respondent  ap- 
peals, is  dissatisfied  with  the  amount  awarded  to  liim, 
he  should  take  a  cross-appeal ;  and  if  he  omits  to  do  so, 
he  waives  all  right  to  further  damages,  and  can  only 
claim  an  affirmance  of  the  decree.  It  is  only  where  the 
Circuit  Court  reverses  the  decree  of  the  District  Court 
that  it  can  proceed  to  render  such  a  decree  as  the  Dis- 
trict Court  ought  to  have  rendered.  It  cannot  pro- 
nounce a  decree  for  increased  damages  without  first 
reversing  the  decree  of  the  District  Court  on  the  subject 
of  damages,  and  that  it  cannot  do  where  the  libellant 
does  not  appeal.^ 

The  proceedings  of  the  commissioner  in  allowing  or 
rejecting  items  cannot  be  reviewed  on  appeal,  unless 
exceptions  to  the  report  are  filed  and  passed  on  by  the 
District  Court.* 

Where  no  exception  is  taken  to  the  admission  of 

»  The  Native,  14  Blatchf.  34.  Stratton  v.  Jarvis,  8  Pet.  4;  Bush  v. 

«  Bush  V.  The  Alonzo,   2   Cliff.-  The  Alonzo,  2  Cliff.  548. 
548;  Allen  v.  Hitch,  2  Curt.  147.  *  Harris  v.  Wheeler,  8  Blatchf. 

»  The  Peytona,  2  Curt.  21 ;  8.  c.  1 ;   Parrel  v.  Campbell,  7  Blatohf. 

1    Ware,  541;    Airev  v.  Merrill,   2  1.58;    The    Vicksburg,    7    Blatcht 

Curt.  8;  Allen  i;.  Hitch,  2  Curt.  147;  216. 


302  ADMIRALTY  LAW. 

evidence  in  the  District  Court,  the  question  cannot  be 
considered.^ 

Whether  the  terms  on  which  the  District  Court  of- 
fered to  allow  an  amendment  of  the  libel  were  severe 
and  exceptionable  or  not,  is  a  matter  which  cannot  be 
noticed  on  an  appeal.  Amendments  rest  in  the  sound 
discretion  of  the  court  in  which  the  proceedings  are 
pending,  and  the  order  of  the  court  in  this  respect  can- 
not be  called  in  question  in  the  appellate  court.^ 

If  the  appellant  fails  to  prosecute  his  appeal  to  the 
next  term  of  the  Circuit  Court  held  after  the  entry  of 
the  decree,  he  will  be  deemed  to  have  deserted  it.^ 

If  the  appellant  neglects  to  prosecute  his  appeal,  the 
appellee  must  apply  for  relief  to  the  Circuit  Court  and 
not  to  the  District  Court.* 

If  the  appellant  deserts  his  appeal,  the  cause  may  be 
remitted  to  the  District  Court,  and  the  taxation  of  the 
costs  may  be  retained  in  the  Circuit  Court  or  directed 
to  be  made  in  the  District  Court,  or  the  appellee  may 
produce  the  record  in  the  Circuit  Court,  and,  upon  an 
ex  parte  hearing,  claim  an  affirmance  of  the  original 
decree,  with  costs.^ 

If  the  libellant,  after  the  entry  of  his  appeal,  fails  to 
prosecute  it,  and  nothing  else  is  shown  as  to  the  merits 
but  the  judgment  of  the  court  below,  the  court  will,  at 
the  instance  of  the  respondent,  affifm  that  judgment.^ 

A  cross-appeal,  even  though  the  other  appellant  has 
docketed  his  appeal,  must  be  prosecuted  like  all  other 
appeals.^  • 

1  Campbell ».  The  Uncle  Sam,  1  ♦  The  Josephine,  1  Abb.  Adm. 

McAllister,  77.  481. 

«  Brown    t>.     The    Cadmus,     2  ^  Montgomery  v.  The  Betsy,  1 

Paine,  564.  Gall.  416. 

«  Montgomery  v.   The  Betsy,  1  «  Folger  y.  Shaw.2  W.  &M.  531. 

Gall.  416;  United  States  v.  Haynes,  ''  Winslow  v.  Wilcox,  U.  S.  Su- 

2  McLean,  155.  preme  Court,  decided  April  3,  1882, 


APPEAL.  303 

If  the  property  has  been  released  on  astipulation, 
the  Circuit  Court  cannot  fix  a  Iiigher  value  upon  the 
res  than  that  for  which  the  stipulation  was  taken.  The 
stipulation  is  a  substitute  for  the  res,  and  upon  the  ap- 
peal stands  in  the  place  of  it,  and  represents  it  in  the 
appellate  court.  It  cannot,  therefore,  be  put  aside  and 
a  new  valuation  substituted  in  its  place.^ 

If  the  parties  who  become  stipulators  in  the  District 
Court  become  insolvent,  the  claimant,  on  motion  of  the 
libellant,  may  be  required  to  file  a  new  stipulation  in 
the  Circuit  Court.'^ 

If  an  abandonment  is  accepted  after  an  appeal  is 
taken,  the  insurer  may  appear  in  the  Circuit  Court  and 
become  dominus  Uiis? 

The  Circuit  Court  cannot  remand  the  case  to  the  Dis- 
trict Court  to  carpy  its  decisions  into  execution.  The 
court  must  carry  its  own  decree  into  execution.* 

The  whole  decree  in  the  court  below  is  brought  up 
on  the  appeal,  although  only  a  part  is  appealed  from. 
In  its  nature  it  is  not  severable.  A  part  of  the  suit 
cannot  be  in  one  court  and  a  part  in  another  at  the 
same  time.  If  that  which  is  appealed  from  is  reversed, 
that  which  is  not  reversed  becomes  a  part  of  the  de- 
cree, and  is  to  be  executed  by  the  Circuit  Court.^ 

If  a  libellant  appeals  from  a  decree  in  his  favor  he 
opens  the  whole  case,  and  the  Circuit  Court  may  dis- 
miss his  libel  if  it  finds  that  he  is  not  entitled  to 
recover.' 

not  reported  up  to  Feb.  10,  1883,  The  Monticello  v.  Mollison,  17  IIow. 

12  Fed.  Rep.  314,  October  Term,  152. 

1881;  Morrison's  Transcript,  vol.  iv.         «  Montgomery  v.   Anderson,  21 

No.  2,  p.  394.  How.  386;  The  Collector,  6  Wheat. 

*  Housraan  r.  The  North  Caro-  194.  But  see  contra.  Chapter  X., 
Una,  15  Pet.  40.  Decree,  p.  278,  and  13  Otto,  239. 

«  The  Virgo,   13   Blatchf.    255;         »  The  Roarer,  1  Blatchf.  1. 
The  Union,  4  Blat<^hf.  90.  •  Saratoga  r.  Four  Hundred  and 

•  The  Ann  C.  Pratt,  1  Curt.  840;    Thirty-eight  Bales,  1  Woods,  75. 


304  ADMIRALTY  LAW. 

A  new  decree  should  be  made  in  the  Circuit  Court. 
The  decree  should  be  complete  within  itself.  No  final 
decree  of  a  court  which  enforces  its  own  judgments 
ought  to  be  left  in  such  condition  that  the  record  of 
another  court  is  the  only  evidence  of  the  amount  recov- 
ered by  the  successful  party.  An  order  merely  affirming 
the  decree  of  the  District  Court  is  not  a  final  decree.^ 

The  Circuit  Court  shall  not  affirm  a  decree  in  part, 
and  dismiss  the  appeal.^ 

In  case  of  an  appeal,  as  provided  by  section  698, 
United  States  Revised  Statutes,  copies  of  the  proofs, 
and  of  such  entries  and  papers  on  file  as  may  be  neces- 
sary on  hearing  of  the  appeal,  shall  be  transmitted  to 
the  Supreme  Court. 

By  Rule  45  of  the  United  States  Supreme  Court  in 
admiralty,  it  is  provided  that  all  appeals  from  the  Dis- 
trict Court  to  the  Circuit  Court  must  be  made  while  the 
court  is  sitting,  or  within  such  other  period  as  shall  be 
designated  by  the  District  Court  by  its  general  rules, 
or  by  an  order  specially  made  in  the  particular  suit,  or 
in  case  no  such  rule  or  order  be  made,  then  within  thirty 
days  from  the  rendering  of  the  decree.* 

The  only  appeals  known  to  courts  of  admiralty  are  in 
open  court,  sedente  curia.  Within  the  limits  fixed  by 
the  statute,  the  District  Court  may  prescribe  the  times 
and  modes  of  making  them.* 

The  appeal  is  usually  viva  voce,  though  at  times  in 
writing.^ 

If  there  is  no  rule  of  the  District  Court  regulating 
the  time  within  which  an  appeal  may  be  taken,  it  can 

1  Harris  v.  Wheeler,  8  Blatchf .  Regia,  17  Wall.  29 ;  Norton  v.  Rich, 
81;  The  Lucille,  19  Wall.  73.  3  Mason,  443. 

2  The  Lottawana,  20  Wall.  201.  *  The  Enterprise,  3  Wall.  Jr.  58. 
8  Amended    May    6,    1872,    12         «  Folger  v.  Shaw,  2  W.   &  M. 

Wall,  xiv  \  The  Xuestra  Seuora  de    531. 


APPEAL.  806 

only  be  taken  in  open  court  immediately  after  the  de- 
cree and  before  the  adjournment  for  the  term.* 

If  the  District  Court  adjourns  without  day  before  an 
appeal  is  taken,  the  party  is  deemed  to  have  waived 
any  appeal ;  and  no  appeal  subsequently  taken  possesses 
any  validity,  although  it  is  offered  or  entered  before  the 
next  term  of  the  Circuit  Court.^ 

A  decree  is  operative  when  the  term  closes  at  which 
it  was  rendered,  before  application  for  rehearing  or 
new  trial.* 

If  an  appeal  was  prayed  and  allowed  and  a  bond 
filed,  it  is  sufficient,  although  it  was  not  entered  on 
the  minutes  of  the  District  Court.* 

Appeals  in  admiralty  and  equity  must  be  taken  to 
the  next  term  of  the  Circuit  Court  after  the  rendition 
of  the  decree  in  the  District  Court,  or  an  appeal  cannot 
be  taken  at  all.^ 

If  the  appeal  is  not  taken  to  the  next  term  of  the 
Circuit  Court  held  in  the  district  after  the  rendition  of 
the  decree,  the  appeal  will  be  dismissed.* 

In  case  of  surprise  or  misapprehension  the  court  will 
always  interfere,  on  motion  and  due  proofs,  and  enlarge 
the  time  until  a  reasonable  opportunity  is  afforded  to 
perfect  an  appeal.^ 

If  the  District  Court  unlawfully  refuses  to  allow  an 
appeal,  the  Circuit  Court,  on  motion,  will  allow  the  ap- 
peal to  be  entered.^ 


»  Norton  ».  Rich,  3  Mason,  443.  N.  321;  United  States  r.  The  Gla- 

«  The  New  England,  3   Sumn.  morgan,  2  Curt.  230;  The  Ilollen, 

493.  1  Mason,  431 ;  Gloucester  Insurance 

»  Brockett  p.  Brockett,  2  How.  Co.  v.  Younger,  2  Curt.  322. 
238;    Carabuston    r.    The     United         •  United    States     r.    Specie,    1 

States,  95  U.  S.  (5  Otto)  285.  Woods,  14. 

*  Oates  i;.  The  Rio  Graode,  1         ^  Gaines  v.  Travis,  1  Abb.  Adm. 

Wood",  593.  422. 

»  Drake  p.  The  Oriental,  9  C.  L.         •  The  Enterprise,  2  Curt.  317. 

20 


306  ADMIRALTY  LAW. 

By  rule  of  the  United  States  District  Court  for  the 
Eastern  District  of  Louisiana,  dated  April  17,  1879,  it 
is  provided,  that  if  after  the  expiration  of  ten  days 
from  the  rendition  of  a  final  decree  no  appeal  be  taken, 
execution  may  issue  on  the  judgment ;  proceedings 
under  this  execution  will,  however,  be  stayed  on  an  ap- 
peal being  taken,  and  the  appellant  filing  a  supersedeas 
bond  before  the  expiration  of  the  next  succeeding  fifty 
days. 

This  order  does  not  affect  unappealable  cases,  where 
the  execution  issues  forthwith. 

By  Rule  22  of  the  United  States  District  Court, 
Eastern  District  of  Louisiana,  it  is  provided  that  all 
appeals  from  final  judgments  of  this  court,  operating 
as  a  supersedeas  or  suspensive  appeal,  shall  be  taken 
within  sixty  days  after  said  judgments  shall  have  been 
rendered;  and  such  appeals  may  be  taken  either  by 
motion  in  open  court  or  by  petition. 

Section  n.  — APPEALS  FROM  CIRCUIT  COURT  TO  SUPREME 

COURT. 

By  section  692  of  the  United  States  Revised  Statutes 
it  is  provided  that  an  appeal  shall  be  allowed  to  the  Su- 
preme Court  from  all  final  decrees  of  any  Circuit  Court, 
or  of  any  District  Court  acting  as  a  Circuit  Court,  in 
cases  of  equity  and  of  admiralty  and  maritime  juris- 
diction, where  the  matter  in  dispute,  exclusive  of  costs, 
exceeds  the  sum  or  value  of  $5,000  ;  and  the  Supreme 
Court  is  required  to  receive,  hear,  and  determine  such 
appeals.  (Thus  amended  by  act  of  Feb.  16,  1875,  ch. 
77,  §  3,  18  Stat.  316,  entitled  ''  An  Act  to  facilitate  the 
disposition  of  cases  in  the  Supreme  Court  of  the  United 
States,  and  for  other  purposes.") 

As  to  the  time  for  taking  appeals  to  the  Supreme 


APPEAL.  307 

Court,  see  United  States  Revised  Statutes,  §  1008,  in 
my  Appendix. 

Cases  of  admiralty  and  maritime  jurisdiction  cannot 
be  carried  to  the  Supreme  Court  for  re-examination  in 
any  other  mode  than  by  appeal.* 

If  the  District  Court  is  not  acting  as  a  Circuit  Court 
in  an  admiralty  case,  no  appeal  lies  from  its  decree 
directly  to  the  Supreme  Court.'^ 

An  appeal  lies  to  the  Supreme  Court  where  the  cause 
has  been  transferred  from  the  District  Court  to  the 
Circuit  Court  on  account  of  the  interest  of  the  district 
judge  in  the  controversy,  or  general  disability  to  dis- 
charge his  duties,  or  his  relationship  to  either  of  the 
parties,  or  because  he  has  been  counsel  in  the  case.* 

A  district  judge  sitting  as  the  Circuit  Court  may 
allow  an  appeal  from  his  own  decree.* 

If  the  decree  of  the  District  Court  is  against  both 
vessels,  and  the  claimants  of  one  only  appeal  to  the 
Circuit  Court,  it  is  doubtful  if  the  owners  of  both  can 
appeal  to  the  Supreme  Court  from  an  affirmance  of 
that  decree,  although  the  one  who  did  appeal  repre- 
sents the  entire  interest  of  the  losing  party .^ 

If  the  decree  is  that  a  judgment  shall  be  entered 
against  the  stipulators  unless  an  appeal  is  taken,  and 
an  appeal  is  taken,  there  is  no  decree  against  the  stipu- 
lators. If  the  decree  of  the  Circuit  Court  is  affirmed  by 
the  Supreme  Court,  and  the  Circuit  Court  then  on 
motion  refuses  to  enter  a  decree  against  the  stipulators, 
this  decision  can  only  be  reviewed  by  an  appeal.' 

The  Supreme  Court  has  jurisdiction  of  an  appeal  in 

»  The  Baltimore.  8  Wall.  377.  *  Rodd  v.  Heartt,  17  WaU.  354. 

«  Sally    c.     United     States,    5        «  The  Mabey  and    Cooper,    14 

Cranch,  372.  Wall.  204. 

•  United  States  v.  Circuit  Judges,  •  Ex  parte  Sawyer,  21  Wall.  235. 
3  WaU.  673. 


308  ADMIRALTY  LAW. 

admiralty,  although  the  Circuit  Court  affirmed  the 
decree  of  the  District  Qonvt  pro  forma  because  the  judge 
had  been  counsel  for  one  of  the  parties.^ 

An  order  of  the  Circuit  Court  merely  affirming  the 
decree  of  the  District  Court  in  a  case  in  admiralty  is 
not  a  final  decree  from  which  an  appeal  may  be  taken.^ 

The  Supreme  Court  has  no  jurisdiction  where  the 
Circuit  Court  entertained  an  appeal  before  a  final 
decree  of  the  District  Court.^ 

A  decree  is  final  although  it  embodies  a  direction  for 
the  taxation  of  costs.* 

A  party  who  does  not  appeal  from  a  decree  may  be 
heard  in  support  of  the  decree  upon  an  appeal  taken  by 
the  adverse  party,  but  cannot  be  heard  in  opposition 
thereto.^ 

If  exceptions  to  a  libel  are  not  brought  to  the  atten- 
tion of  the  Circuit  Court,  nor  referred  to,  either  ex- 
pressly or  by  implication,  in  the  appeal,  they  will  be 
deemed  to  be  conclusively  waived  by  the  respondent 
when  he  is  the  appellant.  To  consider  them  would  be 
to  exercise  the  appellate  power  in  reviewing  the  action, 
not  of  the  Circuit  Court,  but  of  the  District  Court. 
This  cannot  be  done.^ 

A  bill  of  exceptions,  to  present  for  review,  upon  ap- 
peal to  the  Supreme  Court,  the  rulings  of  the  Circuit 
Court,  must  be  based  on  exceptions  taken  to  such  rul- 
ings at  the  time  the  rulings  were  made. 

1  Oregon  v.  Rocca,  18  How.  570.         «  The  Stephen  Morgan,  94  U.  S. 

2  The  Lucille,  19  Wall.  73;  Har-  (4  Otto)  599;  The  Remdeer,  2 
ris  V.  Wheeler,  8  Blatchf.  81.  Wall.  383 ;  The  Marianna  Flora,  11 

8  Mordecai  v.  Lindsay,  19  How.  Wheat.  1;  M'Donough  v.  Dannery, 

199;  Montgomery  v.  Anderson,  21  3  Dall.  188;  The  Societe,  9  Cranch, 

How.  386.  209;  The  Quickstep,  9  Wall.  665. 

*  Craig  V.  The  Hartford,  1  Mc-         •  The  Vaughan,  14  Wall.  258. 
AUister,  91.    See  Harris  v.  Wheeler, 
8  Blatchf.  81. 


APPEAL.  309 

"Where,  after  the  taking  effect  of  the  act  of  Feb. 
16,  1875,  ch.  77  (18  Stat,  part  3,  p.  315),  the  ascertain- 
ment of  the  amount  of  damages  sustained  by  the  vessel 
not  in  fault  was  referred  to  a  master,  the  action  of  the 
Circuit  Court,  upon  exceptions  to  his  report,  all  of  which 
relate  to  questions  of  fact,  will  not  be  reviewed  here.^ 

Section  1  of  the  act  above  cited,  to  facilitate  the  dis- 
position of  cases  in  the  Supreme  Court  of  the  United 
States  and  for  other  purposes,  approved  Feb.  16, 
1875,  provides  that  the  Circuit  Court  shall  find  the 
facts,  and  also  provides  for  trial  by  jury. 

The  ruling  in  The  Abbotsford,  that  under  the  act  of 
Feb.  16,  1875  (18  Stat.  315),  the  finding  of  facts  by 
the  Circuit  Court  in  admiralty  cases  is  conclusive,  and 
that  only  rulings  upon  questions  of  law  can  be  reviewed 
by  bill  of  exceptions,  was  reaffirmed.^ 

Where  the  appeal  involves  a  question  of  fact,  the 
burden  is  on  the  appellant  to  show  that  the  decree  in 
the  subordinate  court  is  erroneous.^ 

Congress  intended  that  the  Supreme  Court  shall  hear 
and  determine  the  whole  merits  of  the  controversy,  and 
the  facts  as  well  as  the  law  of  the  case  are  open  to 
revision  on  appeal.* 

The  Supreme  Court  will  not  reverse  a  decree  of  the 
Circuit  Court  merely  upon  a  doubt  created  by  conflict- 
ing testimony.^ 

The  Supreme  Court  will  re-examine  the  whole  testi- 

»  The  Richmond,  103  U.  S.  (13  How.   491 ;    The  Water    Witch,   1 

Otto)  540.  Black,  494;  The  Potomac,  2  Black, 

«  The  Benefactor,  102   U.  S.  (12  581;  The  Quickstep,  9  Wall.  665; 

Otto)  214.  Philadelphia,  W.,  &  B.  R.  R.  Co.  o. 

•  The  Baltimore,  8  Wall.  377;  Towboat  Co.,  23  How.  209;  The 
United  States  v.  One  HuAdred  and  Hypodame,  6  Wall.  217;  Newell  v. 
Twelve  Casks,  8  Pet.  277.  Norton,  3  Wall.  257 ;  The  Marcellus, 

*  The  Baltimore,  8  Wall.  377.         1  Black.  414;  Mephams  v.  Biessel, 
»  The  S.  B.  Wheeler,  20   Wall.    9  Wall.  370. 

385;    Morewood    v.    Enequist,    23 


310  ADMIRALTY  LAW. 

mony  in  the  case,  and  is  as  much  bound  to  reverse  a 
decree  for  error  of  fact,  if  clearly  established,  as  for 
error  of  law.^ 

If  the  Circuit  Court  affirmed  the  decree  of  the  Dis- 
trict Court,  the  decree  will  not  be  reversed  upon  a  mere 
difference  of  opinion  as  to  the  weight  and  effort  of  con- 
flicting testimony.^ 

Section  ni.  — AMOUNT. 

The  Supreme  Court  is  not  in  the  habit  of  revising 
decrees  as  to  the  amount  of  salvage,  unless  upon  some 
clear  and  palpable  mistake  or  gross  over-allowance  by 
the  court  below.  It  is  equally  against  sound  policy 
and  public  convenience  to  encourage  appeals  in  matters 
of  discretion,  unless  there  has  been  some  violation  of  just 
principles  which  ought  to  regulate  the  subject.^ 

The  English  decisions  as  to  appeals  as  to  the  amount 
of  salvage  are  to  the  same  effect  as  those  of  the  Supreme 
Court  of  the  United  States. 

The  Judicial  Committee  of  the  Privy  Council  are 
unwilling  to  interfere  with  the  judgment  of  the  courts 
appealed  from,  where  the  question  is  one  of  amount, 
which  rested  in  the  discretion  of  the  judge  of  the  court 
below ;  *  and  they  will  refuse  to  disturb  the  amount  of 
compensation  awarded  by  the  court  below,  unless  the 
difference  between  that  amount  and  the  sum  which, 
in  their  judgment,  should  have  been  given  is  very  con- 
siderable.^ 

Nor  will  they  interfere  with  a  salvage  award  on  the 
ground  that  the  judge  of  the  court  of  admiralty  has 
given  too  large  a  sum  to  the  salvors,  unless  they  are 

1  The  Baltimore,  8  Wall.  377;  «  Hobart  v.  Drogan,  10  Pet.  108. 
The  Lady  Pike,  21  Wall.  1.  «  The    Clarisse,    Swa.    129-134 ; 

2  The  Juniata,  93  U.  S.  (3  Otto)  The  Scindia,  L.  R.  1  P.  C.  241-249. 
337.  6  The  England,  38  L.  J.  Adm.  9. 


APPEAL.  311 

satisfied  beyond  all  doubt  that  he  has  made  an  exorbi- 
tant estimate  of  their  services.^ 

Where  a  party  seeks  by  appeal  to  diminish  or 
increase  such  an  award,  he  undertakes  a  very  diffi- 
cult task ;  but,  nevertheless,  if  an  excess  or  an  exor- 
bitance exists,  the  Judicial  Committee  will  exercise 
their  own  judgment  as  to  the  proper  remuneration 
to  the  salvors,  and  reduce  it  to  a  just  and  reasonable 
amount.^ 

Thus,  where  the  court  of  admiralty  awarded  £3,150 
for  salvage  services,  which  the  Judicial  Committee  con- 
sidered would  be  sufficiently  remunerated  by  £1,500, 
they  reduced  the  award  to  the  latter  amount.^ 

If,  in  the  same  way,  the  Privy  Council  should  be  of 
opinion  that  the  sum  awarded  is  insufficient,  they  will 
increase  it  to  such  an  amount  as  they  consider  reasona- 
ble. Thus,  in  The  True  Blue,*  where  a  derelict  vessel 
and  cargo  of  the  value  of  £1,452,  was  saved  by  a  steamer 
which,  with  her  cargo,  was  of  the  value  of  £30,000, 
the  Privy  Council  increased  a  salvage  award  of  the 
Vice-Admiralty  from  £300  to  £4-50. 

The  court  of  admiralty  is  equally  as  unwilling  as  the 
Privy  Council  to  encourage  salvage  appeals  where  the 
question  is  merely  one  of  amount,  and  in  such  cases 
the  burden  always  lies  on  the  appellant,  especially 
where  the  decision  appealed  from  is  a  decision  of  dis- 
cretion.^ 

The  court,  especially  where  the  appeal  is  from  a  de- 
cision of  persons  acquainted  with  the  locality,  relies  to 

»  The  Fusilier,    Br.  &  L.  341-  250;  and  Prendeville  r.  The  Steam 

350.  Navigation  Co.,  38  L.  J.  Adra.  9. 

^  Judgment  of  Lord  Chelmsford,         *  Ubi  supra. 
The  Chetah,  38  L.  J.  Adra.  1.  '  Judgment  of  Dr.  Lushington, 

'  The    Chetah,   ubi  supra.     See  The  Cuba,  Lush.  14,  15. 
also  The  True  Blue,  L.  E.  1  P.  C. 


312  ADMIRALTY  LAW. 

some  extent  on  the  local  skill  of  those  who  decide 
the  question;  but  the  judge  by  whom  the  appeal  is 
heard  will  nevertheless  exercise  his  own  judgment 
upon  it,  and  if  the  sum  awarded  is  entirely  insufficient 
for  the  services  rendered,  he  will  act  upon  his  own 
judgment,  and  decide  accordingly.^ 

The  court  has  on  many  occasions  increased  the  sum 
awarded  by  justices.  Thus,  where  salvors  brought  a 
barge  o£E  a  dangerous  position  near  the  Nore  Sand, 
and  claimed  £80,  and  the  magistrates  at  Maidstone 
awarded  them  £15  only,  the  court  of  admiralty,  on 
appeal,  held  that  this  sum  was  totally  inadequate  for 
the  services  rendered,  and  that  there  had  been  a  gross 
miscarriage  of  justice  on  the  part  of  the  magistrates, 
and  awarded  the  salvors  £40  with  costs  ;  ^  and  where  the 
justices,  in  a  case  where  it  was  alleged  that  the  salvors 
had  agreed  to  render  the  service  for  85.  Qd.,  dismissed 
the  claim,  the  court  holding  that  real  danger  had  been 
incurred  by  the  salvors  in  rendering  the  service,  set 
aside  the  agreement  as  futile,  and  gave  the  claimants 
£10  and  costs.^ 

Unless  the  sum  awarded  be  wholly  inadequate,  how- 
ever, the  court  will  not  disturb  it,  even  although  it 
considers  the  services  such  that,  if  the  case  had  come 
before  it  originally,  it  might  have  given  a  larger 
amount.* 

There  is  great  difficulty  with  appellants  where  the 
only  ground  upon  which  the  appeal  is  based  is  that  the 
amount  allowed  by  the  court  below  is  too  small.  The 
doctrine  is  that  such  allowance  is  in  the  discretion  of 
the  judge  of  that  court.     But  it  has  been  held  in  such 

1    Judgment  of  Dr.  Lushington,  '  The  Phantom,  L.  R.  1  Adm. 

The    Messenger,    Swa.    191.      See  58. 

The  Vesta,  2  Hagg.  189.  *  The  Jeune  Louise,  37  L.   J. 

2  The  Harriet,  Swa.  218.  Adm.  32. 


APPEAL. 


a  case  "that  where  the  law  gives  a  party  an  appeal,  he 
has  a  right  to  demand  the  conscientious  judgment  of 
the  appellate  court  on  every  question  arising  in  the 
cause.  Hence,  many  cases  are  to  be  found  where  the 
appellate  court  has  either  increased  or  diminished  the 
allowance  of  salvage  originally  made,  even  where  it  did 
not  violate  any  of  the  just  principles  which  should 
regulate  the  subject"^ 

"  It  is  exceedingly  inconvenient  that  in  a  salvage  suit, 
where  the  amount  to  be  awarded  is,  under  ordinary  cir- 
cumstances, a  mere  matter  of  discretion,  expense  should 
be  incurred  by  resorting  to  another  court ;  at  the  same 
time,  it  must  be  borne  in  mind  that  as  long  as  the  legis- 
lature admits  of  an  appeal,  the  judge  before  whom  the 
case  is  appealed  must  exercise  his  own  judgment  upon  it. 
If,  on  the  one  hand,  the  award  is,  upon  the  whole,  fair  as 
between  the  parties,  he  will  leave  the  case  where  he 
finds  it,  especially  where  it  is  a  matter  of  discretion ; 
but  if,  on  the  other  hand,  it  appears  to  him  that  the 
award  is  insufficient  for  the  services  rendered,  then  he 
must  act  upon  his  own  judgment  in  that  suit  accord- 
ingly;" and  in  that  case  the  salvage  award  was  in- 
creased from  £15  to  £50.^ 

In  the  case  of  The  Thetis,  3  Hagg.  65,  upon  an 
appeal  by  two  of  the  libellants,  the  High  Court  of 
Admiralty  of  England  gave  the  sum  of  £12,000  in 
addition  to  the  sum  or  award  allowed  by  the  lower 
court. 

In  The  City  of  Berlin,  2  P.  D.  187,  the  Court  of  Ap- 
peal of  England,  in  1877,  increased  the  salvage  award 
of  Sir  R.  Phillimore,  which  was  £2,000,  by  allowing 
£4,000,  with  the  costs  of  the  appeal. 

1  Post  V.  Jones,  19  How.  IGO.         last  case  the  award  was  increased 
«  The  Messenger,  Swa.  191, 192  ;    from  £15  to  £40. 
The   Harriet,    Swa.   218.     In  this 


314  ADMIRALTY  LAW. 

In  The  Robert  Bruce,  5  Notes  of  Cases,  153  (5  Eng. 
Adm.),  the  High  Court  of  Admiralty  of  England  in- 
creased the  award  of  £250  allowed  by  the  lower  court 
to  £500. 

In  the  case  of  The  Raiker,  1  Hagg.  247,  the  award 
was  increased  from  £115  to  £200. 

In  The  True  Blue,  L.  R.  1  P.  C.  p.  250,  Dr.  Lushing- 
ton,  in  rendering  the  opinion  of  the  Privy  Council, 
says,  on  page  253,  as  follows  :  — 

It  is  perfectly  true,  as  it  has  been  argued  on  behalf  of  the 
respondents  in  these  two  cases,  that  this  court  is  always  very 
reluctant  to  review  cases  of  salvage,  either  coming  from  the 
court  of  admiralty  or  from  the  vice-admiralty  courts,  on  the 
sole  ground  of  the  pecuniary  reward  which  has  been  bestowed 
in  those  courts  being  deemed  to  be  insufficient ;  because  it  is 
manifest  that  in  all  these  cases  there  is  the  exercise  of  in- 
dividual discretion,  and  that  exercise  of  individual  discretion 
almost  always  differs  among  different  persons.  Still,  how- 
ever, if  they  think  that  the  justice  of  the  case  has  not  been 
attained,  it  is  the  duty  of  this  court,  sitting  as  a  court  of  ap- 
peal, to  remedy  any  grievance  which  may  appear  to  exist,  and 
to  do  that  which,  under  the  circumstances,  they  may  consider 
to  be  right. 

And  accordingly  the  award  of  the  vice-admiralty 
court  was  increased  from  £350  to  £450. 

In  the  case  of  The  Scindia,  L.  R.  1  P.  C.  241,  in  ren- 
dering the  judgment  at  the  same  time  as  that  an- 
nounced in  the  case  of  The  True  Blue,  above  quoted, 
the  Privy  Council  increased  the  salvage  award  from 
£2,000  to  £3,000.     See  p.  257. 

In  the  case  of  The  Glenduror,  L.  R.  3  P.  C.  589, 
the  Committee  of  the  Privy  Council  increased  the 
award  of  the  lower  court,  which  was  £1,000,  to 
£2,000. 


APPEAL.  315 

In  The  Cayenne,^  Hall,  J.,  delivering  the  opinion  of 
the  court,  said  :  — 

In  the  case  of  The  Brig  Carolina  I  allowed  threefold  of 
the  actual  value  of  the  actual  service,  and  the  Chief  Justice 
of  the  United  States  increased  the  allowance  from  8650  to 
$1,800. 

On  the  other  hand,  the  Privy  Council  decreased  the 
awards  of  the  lower  courts,  and  reduced  them  in  the 
cases  of  The  Amerique,  L.  R.  6  P.  C.  468 ;  and  The 
Chetah,  L.  R  2  P.  C.  205 ;  and  they  laid  down  the 
principle  that  the  amount  or  difference  of  estimate, 
which  would  justify  their  reviewing  the  decisions  of 
the  judge  of  the  lower  court  as  to  the  amount  of  the 
award,  should  be  to  the  extent  of  one-third :  unless  the 
difference  amounted  at  least  to  that,  they  would  not 
interfere. 

The  appeal  suspends  the  sentence  altogether. 

The  cause  in  the  appellate  court  is  heard  de  novo.  See 
Phillips's  Practice,  U.  S.  S.  C.  57. 

The  ruling  in  Jerome  v.  McCarter,  21  Wall.  17,  that 
where,  by  reason  of  the  changed  circumstances  of  the 
case,  or  of  the  parties,  or  of  the  sureties  on  a  super- 
sedeas bond,  so  that  the  security,  which  at  the  time  it 
was  taken  was  sufficient,  does  not  continue  to  be  so, 
this  court  will,  on  proper  application,  so  order  and 
adjudge  as  justice  may  require,  was  reaffirmed,  and 
applied  to  the  case  of  Williams  v.  Clafflin,  103  U.  S. 
(13  Otto)  753. 

Where  the  claim  on  a  fund  in  the  registry  of  the 
admiralty  of  several  mortgages,  secured  in  a  body  by 
one  mortgage,  exceeds  $2,000,  an  appeal  to  the  Su- 
preme Court  will   lie  by  the  mortgagees  in  a  body, 

i  District  Ck>urt,  District  of  Delaware,  October  Term,  1S70,  1  Abbott 
(U.  S.),  42. 


316  ADMIRALTY  LAW. 

though  the  claim  of  no  one  of  them  exceed  the  said 
sum.^ 

The  ruling  in  The  Abbotsford,  98  U.  S.  440,  that 
under  the  act  of  Feb.  16,  1875  (18  Stat.  315),  the  find- 
ing of  facts  by  the  Circuit  Court  in  admiralty  cases  is 
conclusive,  and  that  only  rulings  upon  questions  of  law 
can  be  reviewed  by  bill  of  exceptions,  reaffirmed.^ 

The  record  in  causes  of  admiralty  and  maritime 
jurisdiction  shall  be  confined  to  the  pleadings,  the  find- 
ings of  facts  and  conclusions  of  law  thereon,  the  bills 
of  exceptions,  the  final  judgment  or  decrees,  and  such 
other  orders  and  decrees  as  may  be  necessary  to  a 
proper  review  of  the  case.^ 

1  Rodd  V.  Heartt,  17  Wall.  354.  »  The  Adriatic,   103  U.    S.    (13 

2  The  Benefactor,  102  U.  S.  (12  Otto)  730;  Additional  paragraph, 
Otto)  214.  No.  6,  to  Rule  8. 


APPENDIX 


EULES 


ov 


PRACTICE  FOR  THE  COURTS  OF  THE  UNITED  STATES 


nr 


ADMIRALTY  AND  MARITIME  JURISDICTION,  ON  THE  INSTANCE 
SIDE  OF  THE  COURT,  IN  PURSUANCE  OF  THE  ACT  OF  THE 
TWENTY-THIRD  OF  AUGUST,  1842,  CHAPTER  188. 


Rule  1.    Process,  Issue  and  Service  of.  —  No  mesne  process  ^^J^ 
shall  issue  from  the  District  Courts  in  any  civil  cause  of  ad-  "  >-y  ^ 
miralty  and  maritime  jurisdiction  until  the  libel,  or  libel  of 
information,  shall  be  filed  in  the  clerk's  oflBce  from  which    ^1^\ 
such  process  is  to  issue.     All  process  shall  be  served  by  the   <, 
marshal,  or  by  his  deputy,  or  where  he  or  they  are  interested,     ^j-^ 
by  some  discreet  and  disinterested  person  appointed  by  the     o[^ 
court. 

United  States  r.  Schooner  Charles,  1  Brock.  382. 

Rule  2.  in  Suits  in  Personam,  Nature  of.  —  In  Suits  in  perso- 
nam the  mesne  process  may  be  by  a  simple  warrant  of  arrest 
of  the  person  of  the  defendant  in  the  nature  of  a  capias^  or 
by  a  warrant  of  arrest  of  the  person  of  the  defendant,  with  a 
clause  therein  that,  if  he  cannot  be  found,  to  attach  his  goods 
and  chattels  to  the  amount  sued  for ;  or  if  such  property  can- 
not be  found,  to  attach  his  credits  and  effects  to  the  amount 
sued  for  in  the  hands  of  the  garnishees  named  therein  ;  or  by 
a  simple  monition,  in  the  nature  of  a  summons  to  appear  and 


318  ADMIRALTY  LAW. 

answer  to  the  suit,  as  the  libellant  shall,  in  his  libel  or  infor- 
mation, pray  for  or  elect. 

Manro  v.  Almeida,  10  Wheat.  473;  McGrath  v.  Candalero,  Bee,  64; 
North  V.  Brig  Eagle,  id.  78 ;  Bouysson  v.  Miller,  id.  186. 

Rule  3.  Bail,  Summary  Process.  —  In  ail  suits  in  personam 
where  a  simple  warrant  of  arrest  issues  and  is  executed,  the 
marshal  may  take  bail,  with  sufficient  sureties,  from  the  party 
arrested,  by  bond  or  stipulation,  upon  condition  that  he  will 
appear  in  the  suit  and  abide  by  all  orders  of  the  court,  inter- 
locutory or  final,  in  the  cause,  and  pay  the  money  awarded  by 
the  final  decree  rendered  therein  in  the  court  to  which  the  pro- 
cess is  returnable,  or  in  any  appellate  court.  And  upon  such 
bond  or  stipulation  summary  process  of  execution  may  and 
shall  be  issued  against  the  principal  and  sureties  by  the  court 
to  which  such  process  is  returnable,  to  enforce  the  final  decree 
so  rendered,  or  upon  appeal  by  the  appellate  court. 

Bingham  v.  Wilkins,  Crabbe,  50;  United  States  v.  Little  Charles,  1 
Brock.  382;  Gaines  v.  Travis,  Abb.  Adm.  422 ;  Gardner  v.  Isaacson,  id.  141. 

Rule  4.  Attachment,  •when  may  be  dissolved.  —  In  all  suits 
in  personam  where  goods  and  chattels,  or  credits  and  efifects, 
are  attached  under  such  warrant  authorizing  the  same,  the 
attachment  may  be  dissolved  by  order  of  the  court  to  which 
the  same  warrant  is  returnable,  upon  the  defendant,  whose 
property  is  so  attached,  giving  a  bond  or  stipulation,  with 
sufficient  sureties,  to  abide  by  all  orders,  interlocutory  or 
final,  of  the  court,  and  pay  the  amount  awarded  by  the  final 
decree  rendered  in  the  court  to  which  the  process  is  returnable, 
or  in  any  appellate  court ;  and  upon  such  bond  or  stipulation 
summary  process  of  execution  shall  and  may  be  issued  against 
the  principal  and  sureties  by  the  court  to  which  such  warrant 
is  returnable,  to  enforce  the  final  decree  so  rendered,  or  upon 
appeal  by  the  appellate  court. 

Rule  5.  Bonds  or  Stipulations.  —  Bonds,  or  stipulations  in 
admiralty  suits,  may  be  given  and  taken  in  open  court,  or  at 
chambers,  or  before  any  commissioner  of  the  court  who  is 
authorized  by  the  court  to  take  affidavits  of  bail  and  deposi- 
tions in  cases  pending  before  the  court,  or  any  commissioner 


APPENDIX.  319 

of  the  United  States  authorized  by  law  to  take  bail  and  affi- 
davits in  civil  cases. 

Amended,  May  6,  1872,  13  Wall,  xiv;  The  Martha,  Blatchf.  &  H.  151; 
The  Infanta,  Abb.  Adm.  327;  Sawyer  v.  Oakman,  11  Blatchf.  65. 

Rule  6.  Bail,  Reduction.  New  Sureties.  —  In  all  suits  in 
personam  where  bail  is  taken  the  court  may,  upon  motion, 
for  due  cause  shown,  reduce  the  amount  of  the  sum  contained 
in  the  bond  or  stipulation  therefor  ;  and  in  all  cases  where  a 
bond  or  stipulation  is  taken  as  bail,  or  upon  dissolving  an  at- 
tachment of  property  as  aforesaid,  if  either  of  the  sureties 
shall  become  insolvent  pending  the  suit,  new  sureties  may  be 
required  by  the  order  of  the  court  to  be  given,  upon  motion 
and  due  proof  thereof. 

Rule  7.  Warrant  of  Arrest,  when  may  issue.  —  In  suits  in 
personam  no  warrant  of  arrest,  either  of  the  person  or  prop- 
erty of  the  defendant,  shall  issue  for  a  sura  exceeding  five 
hundred  dollars,  unless  by  the  special  order  of  the  court, 
upon  affidavit  or  other  proper  proof,  showing  the  propriety 
thereof. 

Marshall  v.  Bazin,  7  N.  Y.  Leg.  Obs.  342. 

Rule  8.  Ship's  Tackle,  &c.,  Possession,  how  obtained.  —  In 
all  suits  in  rem  against  a  ship,  her  tackle,  sails,  apparel,  fur- 
niture, boats,  or  other  appurtenances,  if  such  tackle,  sails, 
apparel,  furniture,  boats,  or  other  appurtenances  are  in  the 
possession  or  custody  of  any  third  person,  the  court  may, 
after  a  due  monition  to  such  third  person,  and  a  hearing  of 
the  cause,  if  any,  why  the  same  should  not  be  delivered  over, 
award  and  decree  that  the  same  be  delivered  into  the  custody 
of  the  marshal  or  other  proper  officer,  if,  upon  the  hearing, 
the  same  is  required  by  law  and  justice. 

Rule  9.  Cases  of  Seizure,  Process  in.  —  In  all  cases  of  seiz- 
ure, and  in  other  suits  and  proceedings  in  rem,  the  process, 
unless  otherwise  provided  for  by  statute,  shall  be  by  a  war- 
rant of  arrest  of  the  ship,  goods,  or  other  thing  to  be  arrested; 
and  the  marshal  shall  thereupon  arrest  and  take  the  ship, 
goods,  or  other  thing  into  his  possession  for  safe  custody,  and 


320  ADMIRALTY  LAW. 

shall  cause  public  notice  thereof,  and  of  the  time  assigned  for 
the  return  of  such  process  and  the  hearing  of  the  cause,  to  be 
given  in  such  newspaper  within  the  district  as  the  District 
Court  shall  order ;  and  if  there  is  no  newspaper  published 
therein,  then  in  such  other  public  places  in  the  district  as  the 
court  shall  direct. 

Certain  Logs  of  Mahogany,  2  Sumn.  589;  Poland  v.  Brig  Spartan, 
1  Ware,  13i;    Ship  Robert  Fulton,  1  Paine,  620. 

Rule  10.  Perishable  Goods.  —  In  all  cases  where  any  goods 
or  other  things  are  arrested,  if  the  same  are  perishable,  or  are 
liable  to  deterioration,  decay,  or  injury  by  being  detained  in 
custody  pending  the  suit,  the  court  may,  upon  the  application 
of  either  party,  in  its  discretion,  order  the  same  or  so  much 
thereof  to  be  sold  as  shall  be  perishable  or  liable  to  deprecia- 
tion, decay,  or  injury;  and  the  proceeds,  or  so  much  thereof 
as  shall  be  a  full  security  to  satisfy  in  decree,  to  be  brought 
into  court  to  abide  the  event  of  the  suit ;  or  the  court  may, 
upon  the  application  of  the  claimant,  order  a  delivery  thereof 
to  him,  upon  a  due  appraisement  to  be  had  under  its  direc- 
tion, either  upon  the  claimant's  depositing  in  court  so  much 
money  as  the  court  shall  order,  or  upon  his  giving  a  stipula- 
tion, with  sureties  in  such  sum  as  the  court  shall  direct,  to 
abide  by  and  pay  the  money  awarded  by  the  final  decree 
rendered  by  the  court  or  the  appellate  court,  if  any  appeal 
intervenes,  as  the  one  or  the  other  course  shall  be  ordered  by 
the  court. 

The  Nathaniel  Hooper,  3  Sumn.  542;  The  Cheshire,  Blatchf.  Pr.  Cas. 
165;  The  Ella  Warley,  id.  213;  Jennings  v.  Carson,  4  Cranch,  2. 

Rule  11.  SWp,  Delivery  to  Claimant. — In  like  manner, 
where  any  ship  shall  be  arrested,  the  same  may,  upon  the 
application  of  the  claimant,  be  delivered  to  him,  upon  a 
due  appraisement  to  be  had,  under  the  direction  of  the  court, 
upon  the  claimant's  depositing  in  court  so  much  money  as  the 
court  shall  order,  or  upon  his  giving  a  stipulation,  with  sure- 
ties as  aforesaid ;  and  if  the  claimant  shall  decline  any  such 
application,  then  the  court  may,  in  its  discretion,  upon  the 
application  of  either  party,  upon  due  cause  shown,  order  a 


APPENDIX.  321 

sale  of  such  ship,  and  the  proceeds  thereof  to  be  brought  into 
court,  or  otherwise  disposed  of,  as  it  may  deem  most  for  the 
benefit  of  all  concerned. 
Ship  Virgin,  8  Pet.  538. 

Rule  12.  Suits  by  Material-men. —  In  all  suits  by  material- 
men for  supplies  or  repairs,  or  other  necessaries,  the  libellant 
may  proceed  against  the  ship  and  freight  in  rem^  or  against 
the  master  or  owner  alone  in  personam. 

Promulgated  December  Term,  1844;  Amended  Ist  May,  1859,  21  How. 
iv,  and  6th  May,  187-2,  13  Wall,  xiv;  The  Aurora,  1  Wheat.  105;  The 
General  Smith,  4  Wheat.  438;  The  St.  Jago  de  Cuba,  9  "Wheat.  409; 
Ramsay  v.  Allegre,  12  Wheat.  611;  Peyroux  v.  Howard,  7  Pet.  324;  Ship 
Virgin,  8  Pet.  538;  N.  J.  S.  &  V.  Co.  v.  Merchants'  Bank,  6  How.  390; 
^laguire  v.  Card,  21  How.  248;  The  Nassau,  4  Wall.  634;  The  Maggie 
Hammond,  9  Wall.  435;  The  Grapeshot,  id.  129;  The  Guy,  id.  758;  The 
Patapsco,  13  Wall.  329;  The  Steamer  St.  Lawrence,  1  Black,  522;  The 
Robert  Fulton,  1  Paine,  620;  Philips  v.  The  T.  Scatterwood,  Gilp.  1;  A 
New  Brig,  id.  473;  Schooner  Marion,  1  Story,  68;  Barque  Chusan,  2  Story, 
456;  The  Jerusalem,  2  Gall.  345;  Zane  r.  Brig  President,  4  Wash.  C.  C. 
453;  The  Levi  Dearborn,  4  Hall's  Am.  L.  J.  88;  The  Nestor,  1  Sumn. 
73;  Pritchard  v.  The  Lady  Horatia,  Bee,  167;  The  Ocean  Queen,  6 
Blatchf.  24;  Wolf  v.  The  Selt,  17  Int.  Rev.  Rec.  22;  The  Selt,  3  Biss. 
344;  The  Kate  Tremaine,  5  Ben.  64;  Gill  v.  The  Continental,  8  West. 
Jur.  232;  Re  Kirkland,  12  Am.  L.  Reg.  300;  The  Circassian,  id.  291;  5 
Am.  Law  T.  482;  The  Augusta,  id.  495;  The  Asa  R.  Swift,  1  Newb.  553; 
The  J.  F.  Spencer,  5  Ben.  151;  Hazlett  v.  The  Enterprise,  17  Int.  Rev. 
Rec.  68;  The  Tug  Champion,  7  Chicago  L.  News,  1;  Wilson  v.  Bell,  6 
Chicago  L.  News,  261 ;  The  Circassian,  11  Blatchf.  472;  The  I^ttawanna, 
21  Wall.  .558;  Ship  Edith,  11  Blatchf.  451.  See  Abb.  Nat.  Dig.  vol.  vi. 
pp.  392,  393,  Nos.  71-75. 

Rule  13.  Suits  for  Mariners'  "Wages.  —  In  all  suits  for  mari- 
ners' wages  the  libellant  may  proceed  against  the  ship,  freight, 
and  master,  or  again.^t  tlie  ship  and  freight,  or  against  the 
owner  or  the  master  alone  in  personam. 

St.  Jago  de  Cuba,  9  Wheat.  409;  Sheppard  v.  Taylor,  5  Pet.  675; 
Steamboat  Orleans  v.  Phoebus,  11  Pet.  175;  Hammond  r.  Essex  F.  &  ^L 
Ins.  Co.,  4  Ma.son,  196;  Brown  v.  Lull,  2  Sumn.  443;  Pitman  v.  Hooper, 
3  Sumn.  50;  Foster  v.  The  Pilot,  1  Newb.  215;  Brackett  v.  The  Hercules, 
Gilp.  184;  Bronde  v.  Haven,  id.  592;  Lewis  v.  The  Elizal>eth  and  Jane, 
Ware,  41;  L'Arina  v.  Exchange,  Bee,  198;  L'Arina  r.  Manwaring,  id. 
199;  The  Marj-,  1  Paine,  180;  The  Eastern  Star,  Ware,  185;  Brig  Lang- 

21 


322  ADMIRALTY  LAW. 

don  Cheves,  2  Mason,  58;  Skolfield  v.  Potter,  Daveis,  392;  The  Island 
City,  1  Low.  375;  The  Sailor  Prince,  1  Ben.  234;  The  Blohm,  id.  229. 

Rule  14.  Suits  for  Pilotage.  —  In  all  suits  for  pilotage  the 
libellant  may  proceed  against  the  ship  and  master,  or  against 
the  ship,  or  against  the  owner  alone,  or  the  master  alone,  in 
personam. 

The  Anne,  1  Mason,  508;  The  Wave,  7  Leg.  Obs.  97;  Logan  v.  The 
iEolian,  1  Bond,  267. 

Rule  15.  Suits  for  Damage  by  Collision.  —  In  all  suits  for 
damage  by  collision  the  libellant  may  proceed  against  the  ship 
and  master,  or  against  the  ship  alone,  or  against  the  master  or 
the  owner  alone,  in  personam. 

Smith  etal.  v.  Condry,  1  How.  28;  Waring  ».  Clarke,  5  IIow.  441;  New- 
ell V.  Norton,  3  Wall.  257;  Ward  v.  The  Ogdensburgh,  1  Newb.  139;  5 
McLean,  622;  Hale  v.  Washington  Ins.  Co.,  2  Story,  176;  The  America, 
6  Law  Reporter,  n.  s.  264 ;  The  Narragansett,  Olc  246. 

Rule  16.  Suits  for  Assault  and  Battery.  —  In  all  suits  for  an 
assault  or  beating  on  the  high  seas,  or  elsewhere  within  the 
admiralty  and  maritime  jurisdiction,  the  suit  shall  be  in  per- 
sonam only. 

Forbes  e.  Parsons,  Crabbe,  283;  Haman  r.  Fowle,  1  Saw.  539;  Thomas 
V.  Lane,  2  Sumn.  1;  Chamberlain  v.  Chandler,  3  Mason,  242;  Roberts  v. 
Dallas,  Bee,  239. 

Rule  17.  Suits  for  Hypothecation.  —  In  all  suits  against  the 
ship  or  freight  founded  upon  a  mere  maritime  hypothecation, 
either  express  or  implied,  of  the  master,  for  moneys  taken  up 
in  a  foreign  port  for  supplies  or  repairs,  or  other  necessaries 
for  the  voyage,  without  any  claim  of  marine  interest,  the  libel- 
lant may  proceed  either  in  rem,  or  against  the  master  or  the 
owner  alone  in  personam. 

The  Aurora,  1  Wheat.  96;  The  Grapeshot,  9  Wall.  129;  The  Lulu, 
10  Wall.  192;  The  Kalorama,  id.  208;  The  Patapsco,  13  Wall.  329;  The 
Neversink,  5  Blatchf.  512;  O'Haraw.  Ship  Mary,  Bee,  102;  Seldonr.  Ilen- 
drickson,  1  Brock.  396;  Hurry  p.  The  John  and  Alice,  1  Wash.  C.  C.  293; 
Crawford  v.  The  William  Penn,  3  id.  481. 

Rule  18.  Suits  on  Bottomry  Bonds,  when  in  Rem  and  when 
in  Personam.  —  In   all  suits  on  bottomry  bonds,  properly  so 


APPENDIX.  323 

called,  the  suit  shall  be  in  rem  only  against  the  property 
hypothecated,  or  the  proceeds  of  the  property,  in  whosesoever 
hands  the  same  may  be  found,  unless  the  master  has,  without 
authority,  given  the  bottomry  bond,  or  by  his  fraud  or  mis- 
conduct has  avoided  the  same,  or  has  subtracted  the  property, 
or  unless  the  owner  has,  by  his  own  misconduct  or  wrong, 
lost  or  subtracted  the  property,  in  which  latter  cases  the  suit 
may  be  in  personam  against  the  wrong-doer. 

The  Jerusalem,  2  Gall.  191;  The  Draco,  2  Sumn.  157;  Burke  v.  The 
P.  M.  Rich,  1  Cliff.  308;  Patton  v.  The  Randolph,  Gilp.  45. 

Rule  19.  Suits  for  Salvage.  —  In  all  suits  for  salvage  the 
suit  may  be  in  rem  against  the  property  saved,  or  the  proceeds 
thereof,  or  in  personam  against  the  party  at  whose  request 
and  for  whose  benefit  the  salvage  service  has  been  per- 
formed. 

The  Blackwall.  10  Wall.  1;  The  Davis,  id.  15;  Eads  v.  The  H.  D. 
Bacon,  1  Newb.  274;  Brevoor  v.  The  Fair  American,  1  Pet.  Adm.  87; 
Gates  V.  Johnson,  11  Law  Reporter,  n.  s.  279;  Nott  ».  The  Sabine,  2 
Woods,  211;  affirmed,  101  U.  S.  (11  Otto)  384. 

Rule  20.  in  Petitory  and  Possessory  Suits.  —  In  all  peti- 
tory and  possessory  suits  between  part-owners  or  adverse 
proprietors,  or  by  the  owners  of  a  ship,  or  the  majority 
thereof,  against  the  master  of  a  ship  for  the  ascertainment  of 
the  title  and  delivery  of  the  possession,  or  for  the  possession 
only,  or  by  one  or  more  part-owners  against  the  others  to 
obtain  security  for  the  return  of  the  ship  from  any  voyage 
undertaken  without  their  consent,  or  by  one  or  more  part- 
owners  against  the  others  to  obtain  possession  of  the  ship  for 
any  voyage,  upon  giving  security  for  the  safe  return  thereof, 
the  process  shall  be  by  an  arrest  of  the  ship,  and  by  a  moni- 
tion to  the  adverse  party  or  parties  to  appear  and  make  an- 
swer to  the  suit. 

Fox  V.  The  Lodemia,  Crabbe,  271;  The  Marengo,  1  Sprague,  506;  Tlie 
Ocean,  id.  535. 

Rule  21.  Decrees,  Enforcement  of  —  In  all  cases  of  a  final 
decree  for  the  payment  of  money  the  libellant  shall  have  a 
writ  of  execution,  in  the  nature  of  ajieri  facias^  commanding 


824  ADMIRALTY  LAW. 

the  marshal  or  his  deputy  to  levy  and  collect  the  amount 
thereof  out  of  the  goods  and  chattels,  lands  and  tenements,  or 
other  real  estate  of  the  defendant  or  stipulators. 

Amended  December  Term,  1861,  1  Black,  6;  Gaines  v.  Travis,  Abb. 
Adm.  422;  The  Delaware,  01c.  2i0;  Harris  v.  Wheeler,  8  Blatchf.  81. 

Rule  22.  —  informations  and  Libels  on  Seizures.  —  All  in- 
formations and  libels  of  information  upon  seizures  for  any 
breach  of  tlie  revenue,  or  navigation,  or  other  laws  of  the 
United  States,  shall  state  the  place  of  seizure,  whether  it  be 
on  land  or  on  the  high  seas,  or  on  navigable  waters  within 
the  admiralty  and  maritime  jurisdiction  of  the  United  States, 
and  the  district  within  which  the  property  is  brought,  and 
where  it  then  is.  The  information  or  libel  of  information 
shall  also  propound  in  distinct  articles  the  matters  relied  on 
as  grounds  or  causes  of  forfeiture,  and  aver  the  same  to  be 
contrary  to  the  form  of  the  statute  or  statutes  of  the  United 
States  in  such  case  provided,  as  thfi  case  may  require,  and 
shall  conclude  with  a  prayer  of  due  process  to  enforce  the 
forfeiture,  and  to  give  notice  to  all  persons  concerned  in  in- 
terest to  appear  and  show  cause  at  the  return-day  of  the  pro- 
cess why  the  forfeiture  should  not  be  decreed. 

The  Caroline  v.  United  States,  7  Cranch,  496;  The  Anne  v.  United 
States,  id.  570;  The  Hoppet  v.  United  States,  id.  389;  The  Margaret,  9 
Wheat.  421;  Wood  v.  United  States,  16  Pet.  342;  United  States  v.  The 
Queen,  11  Blatchf.  416. 

The  Caroline,  1  Brock.  384;  The  Washington,  4  Blatchf.  101;  United 
States  V.  Rectified  Spirits,  8  Blatchf.  480;  Kynoch  v.  The  S.  C.  Ives,  1 
Newb.  205;  The  Zenobia,  Abb.  Adm.  48;  Brevoorv.  The  Fair  American, 
1  Pet.  Adm.  87;  United  States  «.  Barrels  of  Alcohol,  10  Int.  Rev.  Rec.  17. 
See  5  Ben.  4. 

Rule  23.  Libels  in  Instance  Causes.  —  All  libels  in  in- 
stance causes,  civil  or  maritime,  shall  state  the  nature  of  the 
cause  ;  as,  for  example,  that  it  is  a  cause,  civil  and  maritime, 
of  contract,  or  of  tort  or  damage,  or  of  salvage,  or  of  possession, 
or  otherwise,  as  the  case  may  be  ;  and  if  the  libel  be  in  rem, 
that  the  property  is  within  the  district  ;  and  if  in  personam, 
the  names  and  occupations  and  places  of  residence  of  the  par- 
ties. The  libel  shall  also  propound  and  articulate  in  distinct 
articles  the  various  allegations  of  fact  upon  which  the  libel- 


APPEXDIX.  325 


ant  re hes  in  s.ipport  of  his  suit,  so  that  the  defendant  mw 
be  enabled  to  answer  distinctly  and  separa.ely  the  several 
matlers  eontajned  in  each  article  ;  and  it  shall  conclude  liTh 
a  prayer  of  due  process  to  enforce  his  rights  m  rem^rt 
personam  (as  the  case  may  require),  and  for  such  retf  and 
redress  as  the  court  is  competent  to  give  in  the  premiss 
And  the  hbellant  may  further  require  the  defendartoTn 
awer  on  oath  all  interrogatories  propounded  by  hiu,  toucUiZ" 

:rnctiori:'"„r '"''-''"-  "*  '"^  '^^ »'  "■«  ^-^ »' 

p.»  ^2:  ret;  ^,  TZ.T^'  %m;.r*= 

Wakeman,  19  How.  Pr.  36-  VVe«f  „  Tl,.  tt     .     e  '  '  ^*'^''  "' 

tiUed  SpM..  a  Ben.  5,  ^n^T,:  ^n^t^' l^tl^,^'^  ^^ 
1  Sumn.  328;  Treadwell  i,.  Joseph   id   SOO-  TU^Z         r     '  ^^^"' 

T.«  Havre.  1  Ben.  295,  Abon^L' gS 'JlTs^IrL^rLo.  T-  '' 
Rule  24.  Amendment,  to  Libel.,  «c,  oj  Cour.e  —  In  »ll 
.nformafons  and  libels,  in  causes  of  admiralty  "'d  m Juime 
Junsd>ct,on,  amendments,  in  matte,,  of  formf  may  ZtZ 
at  any  time,  on  motion,  to  the  court  as  of  course  aLT 
counts  may  be  filed,  and  umendmenl.  1^"  iei.  ^f  X 
stance,  may  be  made,  upon  motion,  at  any  tTme  befot  tht 
final  decree  upon  such  terms  as  the  court  simll  impose  aL 
where  any  defect  of  form  is  set  down  bv  the  V2T\ 

special  exceptions  and  is  allowed,  ;?cLrt  m' J     "gliir 
leave  to  amend.  in,po.se  terms  upon  the  libellant         ^  ^ 

Rule  25.  Secority  for  Oct.,  when. —  In  all  cases  nf  iri,.i. 
tn  personam  the  court  may,  in  its  discretion  ,LT.T 
ance  of  the  defendant,  wl^.e  no  blht  tee?^!l.  "T"" 
attachment  of  property  has  been  malta"::  erlreifi:  J! 
of  the  suit,  require  the  defendant  to  give  a  stinuirtion  !k 
sureties  in  such  sum  as  the  court  shalf  d.Veet  to  paraH  co"ts 
upon  rir''  "V'"'"  ''^  ''""'^'''''  "gamst'him'i^t     :: 

cXtttiSsrrhVs^r'"'  "^  -^  ^--'--^ 

Tharo  p.  Smith,  18  Uow.  Pr.  47. 


326  ADMIRALTY  LAW. 

Rule  26.  Claim,  when  to  be  verified.  —  In  suits  in  rem  the 
party  claiming  the  property  shall  verify  his  claim  on  oath  or 
solemn  ajBfirmation,  stating  that  the  claimant  by  whom  or  on 
whose  behalf  the  claim  is  made  is  the  true  and  bona  fide  owner, 
and  that  no  other  person  is  the  owner  thereof.  And  where 
the  claim  is  put  in  by  an  agent  or  consignee,  he  shall  also 
make  oath  that  he  is  duly  authorized  thereto  by  the  owner  ; 
or  if  the  property  be,  at  the  time  of  the  arrest,  in  the  pos- 
session of  the  master  of  a  ship,  that  he  is  the  lawful  bailee 
thereof  for  the  owner.  And  upon  putting  in  such  claim,  the 
claimant  shall  file  a  stipulation,  with  sureties  in  such  sum  as 
the  court  shall  direct,  for  the  payment  of  all  costs  and  ex- 
penses which  shall  be  awarded  against  him  by  the  final  decree 
of  the  court,  or  upon  an  appeal,  by  the  appellate  court. 

United  States  v.  Bai*rels  of  Alcohol,  10  Int.  Rev.  Rec.  17. 

Rule  27.  Answer  to  be  verified.  —  In  all  libels  in  causes  of 
civil  and  maritime  jurisdiction,  whether  in  rem  or  in  personam^ 
the  answer  of  the  defendant  to  the  allegations  in  the  libel 
shall  be  on  oath  or  solemn  affirmation;  and  the  answer  shall 
be  full  and  explicit  and  distinct  to  each  separate  article  and 
separate  allegation  in  tlie  libel,  in  the  same  order  as  numbered 
in  the  libel,  and  shall  also  answer  in  like  manner  each  inter- 
rogatory propounded  at  the  close  of  the  libel.^  [See  Rule 
48.] 

Gammell  v.  Skinner,  2  Gall.  45;  Teasdale  v.  The  Rambler,  Bee,  9; 
Coffin  V.  Jenkins,  3  Story,  108. 

Rule  28.  Exception  to  Answer. —  The  libellant  may  except 
to  the  sufficiency,  or  fulness,  or  distinctness,  or  relevancy  of 
the  answer  to  the  articles  and  interrogatories  in  the  libel ; 
and  if  the  court  shall  adjudge  the  same  exceptions,  or  any  of 
them,  to  be  good  and  valid,  tlie  court  shall  order  the  defend- 
ant forthwith,  within  such  time  as  the  court  shall  direct,  to 
answer  the  same,  and  may  further  order  the  defendant  to  pay 
such  costs  as  the  court  shall  adjudge  reasonable. 

The  Pioneer,  Deady,  58. 

Rule  29.   Default,  Effect  of.  —  If  the   defendant  shall  omit 
or  refuse  to  make  due  answer  to  the  libel  upon  the  return- 
1  Qualified  post,  Rule  49. 


APPENDIX.  327 

day  of  the  process,  or  otlier  da}--  assigned  by  the  court,  the 
court  shall  pronounce  him  to  be  in  contumacy  and  default ; 
and  thereupon  the  libel  shall  be  adjudged  to  be  taken  pro 
covfesso  against  him,  and  the  court  shall  proceed  to  hear  the 
cause  ex  parte  and  adjudge  therein  as  to  law  and  justice  shall 
appertain.  But  the  court  may,  in  its  discretion,  set  aside  the 
default,  and,  upon  the  application  of  the  defendant,  admit 
him  to  make  answer  to  the  libel  at  any  time  before  the  final 
hearing  and  decree,  upon  his  payment  of  all  the  costs  of  the 
suit  up  to  the  time  of  granting  leave  therefor. 

The  David  Pratt,  Ware,  495. 

Rule  30.  Further  Answer,  when  required.  —  In  all  caseS 
where  the  defendant  answers,  but  does  not  answer  fully  and 
explicitly  and  distinctly  to  all  the  matters  in  any  article  of  the 
libel,  and  exception  is  taken  thereto  by  the  libellant,  and  the 
exception  is  allowed,  the  court  may,  by  attachment,  compel 
the  defendant  to  make  further  answer  thereto,  or  may  di- 
rect the  matter  of  the  exception  to  be  taken  pro  confe»%o 
against  the  defendant  to  the  full  purport  and  effect  of  the  arti- 
cle to  which  it  purports  to  answer,  and  as  if  no  answer  had 
been  put  in  thereto. 

The  Commander  in  Chief,  1  Wall.  44;  Miller  v.  United  States,  11 
Wall.  268;  United  States  v.  Barrels  of  Alcohol,  10  Int.  Rev.  Rec.  17. 

Rule  31.  what  Allegation  need  not  be  answered.  —  The 
defendant  may  object,  by  his  answer,  to  answer  any  allega- 
tion or  interrogatory  contained  in  the  libel  which  will  expose 
him  to  any  prosecution  or  punishment  for  a  crime,  or  for 
any  penalty  or  any  forfeiture  of  his  property  for  any  penal 
offence. 

United  States  v.  Packages  of  Pins,  Gilp.  306;  The  Aldebaran,  01c. 
130;  The  Gustavia,  Blatcbf.  &  H.  189. 

Rule  32.  interrogatories  propounded  in  Answer.  —  The  de- 
fendant shall  have  a  right  to  require  the  personal  answer  of 
the  libellant,  upon  oath  or  solemn  affirmation,  to  any  inter- 
rogatories which  he  may,  at  the  close  of  his  answer,  propound 
to  the  libellant  touching  any  matters  charged  in  the  libel,  or 


328  ADMIRALTY  LAW. 

touching  any  matter  of  defence  set  up  in  the  answer,  subject 
to  the  like  exception  as  to  matters  which  shall  expose  the 
libellant  to  any  prosecution,  or  punishment,  or  forfeiture,  as 
is  provided  in  the  thirty-first  rule.  In  default  of  due  answer 
by  the  libellant  to  such  interrogatories,  the  court  may  adjudge 
the  libellant  to  be  in  default  and  dismiss  the  libel,  or  may 
compel  his  answer  in  the  premises  by  attachment,  or  take  the 
subject-matter  of  the  interrogatory  pro  confesso  in  favor  of 
the  defendant,  as  the  court,  in  its  discretion,  shall  deem  most 
fit  to  promote  public  justice. 

The  David  Pratt,  Ware,  495;  Gammell  v.  Skinner,  2  Gall.  46. 

Rule  33.  verification  of  Answer  to  Interrogatory,  -when  dis- 
pensed with.  —  Where  either  the  libellant  or  the  defendant  is 
out  of  the  country,  or  unable,  from  sickness  or  other  casualty, 
to  make  an  answer  to  any  interrogatory  on  oatii  or  solemn 
affirmation  at  the  proper  time,  the  court  may,  in  its  discre- 
tion, in  furtherance  of  the  due  administration  of  justice,  dis- 
pense therewith,  or  may  award  a  commission  to  take  the 
answer  of  the  defendant  when  and  as  soon  as  it  may  be 
practicable. 

Rule  34.  intervention,  how,  —  If  any  third  person  shall 
intervene  in  any  cause  of  admiralty  and  maritime  jurisdiction 
in  rem  for  his  own  interest,  and  he  is  entitled,  according  to 
the  course  of  admiralty  proceedings,  to  be  heard  for  his  own 
interest  therein,  he  shall  propound  the  matter  in  suitable  alle- 
gations, to  which,  if  admitted  by  the  court,  the  other  party 
or  parties  in  the  suit  may  be  required,  by  order  of  the  court, 
to  make  due  answer;  and  such  further  proceedings  shall  be 
had  and  decree  rendered  by  the  court  therein  as  to  law  and 
justice  shall  appertain.  But  every  such  intervenor  shall  be 
required,  upon  filing  his  allegations,  to  give  a  stipulation, 
with  sureties,  to  abide  by  the  final  decree  rendered  in  the 
cause,  and  to  pay  all  such  costs  and  expenses  and  damages  as 
shall  be  awarded  by  the  court  upon  the  final  decree,  whether 
it  is  rendered  in  the  original  or  appellate  court. 

The  Mary  Anne,  Ware,  104;  Harper  v.  The  New  Brig,  Gilp.  536; 
United  States  v.  Barrels  of  Alcohol,  10  lut.  Rev.  Rec.  17. 


APPENDIX.  329 

Rule  35.  stipulations,  how  given  and  taken.  —  The  stipu- 
lations required  by  the  lust  preceding  rule,  or  on  appeal,  or 
in  any  other  admiralty  or  maritime  proceeding,  shall  be 
given  and  taken  in  the  manner  prescribed  by  Rule  5  as 
amended. 

Amended  May  6,  1872,  14  Wall,  xi;  Lane  v.  Townsend,  Ware,  286. 

Rule  3G.  Exceptions,  Effect  of  Allowance.  —  Exceptions 
may  be  taken  to  any  libel,  allegation,  or  answer,  for  surplus- 
age, irrelevancy,  impertinence,  or  scandal ;  and  if,  upon  refer- 
ence to  a  master,  the  exception  shall  be  reported  to  be  so 
objectionable,  and  allowed  by  the  court,  the  matter  shall  be 
expunged,  at  the  cost  and  expense  of  the  party  in  whose 
libel  or  answer  the  same  is  found. 

United  States  v.  Barrels  of  Alcohol,  10  Int.  Rev.  Rec.  17. 

Rule  37.  Attachment,  Proceedings  against  Garnishee. —  In 
cases  of  foreign  attachment,  the  garnishee  shall  be  required 
to  answer  on  oath  or  solemn  affirmation  as  to  the  debts, 
credits,  or  effects  of  the  defendant  in  his  hands,  and  to  such 
interrogatories  touching  the  same  as  may  be  propounded  by 
the  libellant ;  and  if  he  shall  refuse  or  neglect  so  to  do,  the 
court  may  award  compulsory  process  in  personam  against 
him.  If  he  admits  any  debts,  credits,  or  effects,  the  same 
shall  be  held  in  his  hands,  liable  to  answer  the  exigency  of 
the  suit. 

Manro  r.  Almeida,  10  Wheat.  473;  Shorey  v.  Rennel,  1  Sprague,  418; 
McDonald  v.  Rennel,  11  Law  Reporter,  n.  s.  157. 

Rule  38.  Property,  how  brought  into  Court.  —  In  cases  of 
mariners'  wages,  or  bottomry,  or  salvage,  or  other  proceed- 
ings in  rem^  where  freight  or  other  proceeds  of  property  are 
attached  to  or  are  bound  by  the  suit,  which  are  in  the  hands 
or  possession  of  any  person,  the  court  may,  upon  due  appli- 
cation, by  petition  of  the  party  interested,  require  the  party 
charged  with  the  possession  thereof  to  appear  and  show  cause 
why  the  same  should  not  be  brought  into  court  to  answer  the 
exigency  of  the  suit ;  and  if  no  sufficient  cause  be  shown,  the 
court  may  order  the  same  to  be  brought  into  court  to  answer 
the  exigency  of  the  suit ;  and  upon  failure  of  the  party  to 


330  ADMIRALTY  LAW. 

comply  with  the  order,  may  award  an  attachment,  or  other 
compulsive  process,  to  compel  obedience  thereto. 

The  Gran  Para,  10  Wheat.  497 ;  Sheppard  v.  Taylor,  5  Pet.  675. 

Rule  39.  Non-appearance  of  Libellant.  Dismissal.  —  If,  in 
any  admiralty  suit,  the  libellant  shall  not  appear  and  prose- 
cute his  suit,  according  to  the  course  and  orders  of  the  court, 
he  shall  be  deemed  in  default  and  contumacy,  and  the  court 
may,  upon  the  application  of  the  defendant,  pronounce  the 
suit  to  be  deserted,  and  the  same  may  be  dismissed  with 
costs. 

Rule  40.  Decree,  when  may  be  rescinded.  —  The  court  may, 
in  its  discretion,  upon  the  motion  of  the  defendant  and  the 
payment  of  costs,  rescind  the  decree  in  any  suit  in  which,  on 
account  of  his  contumacy  and  default,  the  matter  of  the  libel 
shall  have  been  decreed  against  him,  and  grant  a  rehearing 
thereof  at  any  time  within  ten  days  after  the  decree  has  been 
entered,  the  defendant  submitting  to  such  further  orders  and 
terms  in  the  premises  as  the  court  may  direct. 

Steamboat  New  England,  3  Sumn.  495. 

Rule  41.  Salea  of  Property  and  Proceeds.  —  All  sales  of 
property  under  any  decree  of  admiralty  shall  be  made  b}'  the 
marshal  or  his  deputy,  or  other  proper  officer  assigned  by  the 
com't<  where  the  marshal  is  a  party  in  interest,  in  pursuance 
of  the  orders  of  the  court ;  and  the  proceeds  thereof,  when 
sold,  shall  be  forthwith  paid  into  the  registry  of  the  court  by 
the  officer  making  the  sale,  to  be  disposed  of  by  the  court 
according  to  law. 

The  Avery,  2  Gall.  308;  Wallis  v.  Thornton,  2  Brock.  422. 

Rule  42.  Moneys,  Deposit  of.  —  All  moneys  paid  into  the 
registry  of  the  court  shall  be  deposited  in  some  bank  desig- 
nated by  the  court,  and  shall  be  so  deposited  in  the  name  of 
the  court,  and  shall  not  be  drawn  out  except  by  check  or 
checks,  signed  by  a  judge  of  the  court,  and  countersigned  by 
the  clerk,  stating  on  whose  account  and  for  whose  use  it  is 
drawn,  and  in  what  suit  and  out  of  what  fund  in  ]  articular 
it  is  paid.     The  clerk  shall  keep  a  regular  book,  containing  a 


APPENDIX.  331 

memorandum  and  copy  of  all  the  checks  so  drawn  and  the 
date  thereof. 

Rule  43.  intervener  for  Proceeds,  how  to  come  in.  —  Any 
person  having  an  interest  in  any  proceeds  in  the  registry  of 
the  court  shall  have  a  right,  by  petition  and  summary  pro- 
ceeding, to  intervene  j>ro  interesse  suo  for  a  delivery  thereof 
to  him  ;  and  upon  due  notice  to  the  adverse  parties,  if  any, 
the  court  shall  and  may  proceed  summarily  to  hear  and  de- 
cide thereon,  and  to  decree  therein  according  to  law  and  jus- 
tice. And  if  such  petition  or  claim  shall  be  deserted,  or,  upon 
a  hearing,  be  dismissed,  the  court  may,  in  its  discretion,  award 
costs  against  the  petitioner  in  favor  of  the  adverse  party. 

Schuchardt  v.  Babbidge,  19  How.  239;  Leland  r.  The  Medora,  2 
Woodb.  &  M.  92;  The  L.  B.  Goldsmith,  1  Newb.  123;  Brackett  v.  The 
Hercules,  Gilp.  184;  Harper  v.  The  New  Brig,  id.  536;  The  Panama, 
01c.  343 ;  The  Lottawaiuia,  21  Wall.  558. 

Rule  44.  Reference  to  Commissioners,  when.  —  In  cases 
where  the  court  shall  deem  it  expedient  or  necessary  for  the 
purposes  of  justice,  the  court  may  refer  any  matters  arising  in 
the  progress  of  the  suit  to  one  or  more  commissioners,  to  be 
appointed  by  the  court,  to  hear  the  parties  and  make  report 
therein.  And  such  commissioner  or  commissionei-s  shall  have 
and  possess  all  the  powers  in  the  premises  which  are  usually 
given  to  or  exercised  by  masters  in  chancery  in  references  to 
them,  including  the  power  to  administer  oaths  to  and  to  ex- 
amine the  parties  and  witnesses  touching  the  premises. 

Furniss  v.  The  Magoun,  01c.  55;  Shaw  v.  Collier,  18  How.  Pr.  238. 

Rule  45.  Appeals,  when  mada  —  All  appeals  from  the  Dis- 
trict Court  to  the  Circuit  Court  must  be  made  while  the  court 
is  sitting,  or  within  such  other  period  as  shall  be  designated  by 
the  District  Court  by  its  general  rules,  or  by  an  order  specially 
made  in  the  particular  suit,  or  in  case  no  such  rule  or  order 
be  made,  then  within  thirty  days  from  the  rendering  of  the 
decree. 

Amended  May  6,  1872,  13  Wall,  xiv;  The  Nuestra  Seflora  de  Regla, 
17  Wall.  29;  Norton  v.  Rich,  3  Mas.  443. 


332  ADMIRALTY  LAW. 

Rule  46.  Practice,  Courts  to  regulate.  —  In  all  cases  not 
provided  for  by  the  foregoing  rules  the  District  and  Circuit 
•Courts  are  to  regulate  the  practice  of  the  said  courts  respec- 
tively, in  such  manner  as  they  shall  deem  most  expedient  for 
the  due  administration  of  justice  in  suits  in  admiralty. 

Beers  v.  Haughton,«9  Pet.  329. 

Rule  47.  Arrest,  Bail  when  taken.  —  In  all  suits  in  per- 
sonam where  a  simple  warrant  of  arrest  issues  and  is  ex- 
ecuted, bail  shall  be  taken  by  the  marshal  and  the  court  in 
those  cases  only  in  which  it  is  required  by  the  laws  of  the 
State  where  an  arrest  is  made  upon  similar  or  analogous  pro- 
cess issuing  from  the  State  courts. 

Imprisonment  for  Debt,  "wrhere  abolished.  —  And  imprison- 
ment for  debt,  on  process  issuing  out  of  the  admiralty  court, 
is  abolished  in  all  cases  where,  by  the  laws  of  the  State  in 
which  the  court  is  held,  imprisonment  for  debt  has  been,  or 
shall  be  hereafter,  abolished,  upon  similar  or  analogous  pro- 
cess issuing  from  a  State  court. 

Promulgated  December  Term,  1850,  10  How.  v;  Beers  v.  Haughton, 
9  Pet.  329;  Bingham  v.  Wilkins,  Crabbe,  .50;  Gaines  v.  Travis,  1  Abb. 
Adm.  422;  Marshall  v.  Daziu,  7  N.  Y.  Leg.  Obs.  342. 

Rule  48.  Answer,  Sufficiency  ol  —  The  twenty-seventh 
rule  shall  not  apply  to  cases  where  the  sura  or  value  in  dis- 
j)ute  does  not  exceed  fifty  dollars,  exclusive  of  costs,  unless 
the  District  Court  shall  be  of  opinion  that  the  proceedings 
prescribed  bj'  that  rule  are  necessary  for  the  purposes  of  jus- 
tice in  the  case  before  the  court. 

All  rules  and  parts  of  rules  heretofore  adopted  inconsistent 
with  this  order  are  hereby  repealed  and  annulled. 

Promulgated  December  Term,  1850,  10  How.  vi. 

Rule  49.  Appeal,  Further  Proof,  how  taken.  —  Further  proof 
taken  in  a  Circuit  Court  upon  an  admiralty  appeal  shall  be  by 
deposition,  taken  before  some  commissioner  appointed  by  a 
Circuit  Court,  pursuant  to  the  acts  of  Congress  in  that  be- 
half, or  before  some  officer  authorized  to  take  depositions  by 
the  thirtieth  section  of  the  act  of  Congress  of  the  24th  of 


APPENDIX.  333 

September,  1789,^  upon  an  oral  examination  and  cross-exami- 
nation, unless  the  court  in  which  such  appeal  shall  be  pend- 
ing, or  one  of  the  judges  thereof,  shall,  upon  motion,  allow  a- 
commission  to  issue  to  take  such  depositions  upon  written  in- 
terrogatories and  cross-interrogatories.  When  such  deposi- 
tion shall  be  taken  by  oral  examination,  a  notification  from 
the  magistrate  before  whom  it  is  to  be  taken,  or  from  the 
clerk  of  the  court  in  which  such  appeal  shall  be  pending,  to 
the  adverse  party  to  be  present  at  the  taking  of  the  same, 
and  to  put  interrogatories,  if  he  think  fit,  shall  be  served  on 
the  adverse  party,  or  his  attorney,  allowing  time  for  their  at- 
tendance after  being  notified  not  less  than  twenty-four  hours, 
and  in  addition  thereto  one  day,  Sundays  exclusive,  for  every 
twenty  miles'  travel :  Provided,  That  the  court  in  which 
such  appeal  may  be  pending,  or  either  of  the  judges  thereof, 
may,  upon  motion,  increase  or  diminish  the  length  of  notice 
above  required. 

Promulgated  December  Term,  1851,  13  How.  vi.  See  The  Samuel,  1 
Wheat.  9;  The  Georgia,  7  Wall.  32;  The  Ocean  Queen,  6  Blatchf.  24. 

Rule  50.  Oral  Evidence,  when  admissible  on  Appeal.  — 
When  oral  evidence  shall  be  taken  down  by  the  clerk  of  the 
District  Court  pursuant  to  the  above-mentioned  section  of  the 
act  of  Congress,  and  shall  be  transmitted  to  the  Circuit 
Court,  the  same  may  be  used  in  evidence  on  the  appeal,  sav- 
ing to  each  party  the  right  to  take  the  depositions  of  the  same 
witnesses,  or  either  of  them,  if  he  should  so  elect. 

Promulgated  December  Term,  1851,  13  How.  vi. 

Rule  51.  New  Facts  in  Answer,  how  met  —  When  the  de- 
fendant, in  his  answer,  alleges  new  facts,  these  shall  be  con- 
sidered as  denied  by  the  libellant,  and  no  replication,  general 
or  special,  shall  be  allowed.  But  within  such  time  after  the 
answer  is  filed  as  shall  be  fixed  by  the  District  Court,  either 
by  general  rule  or  by  special  order,  the  libellant  may  amend 
his  libel  so  as  to  confess  and  avoid,  or  explain,  or  add  to  the 
new  matters  set  forth  in  the  answer ;  and  within  such  time 

1  See  Revised  Statutes,  §  865. 


334  ADMIRALTY  LAW. 

as  may  be  fixed,  in  like  manner,  the  defendant  shall  answer 
such  amendments. 

Promulgated  December  Term,  1854,  17  How.  vi. 

RdxE  52.  I.  Records  on  Appeal,  how  made  up.  —  The  clerks 
of  the  District  Courts  shall  make  up  the  records  to  be  trans- 
mitted to  the  Circuit  Courts  on  appeals,  so  that  the  same 
shall  contain  the  following  :  — 

1.  The  style  of  the  court. 

2.  The  names  of  the  parties,  setting  forth  the  original  par- 
ties, and  those  who  have  become  parties  before  the  appeal,  if 
any  change  has  taken  place. 

3.  If  bail  was  taken,  or  property  was  attached  or  arrested, 
the  process  of  the  arrest  or  attachment  and  the  service  thereof, 
all  bail  and  stipulations,  and,  if  any  sale  has  been  made,  the 
orders,  warrants,  and  reports  relating  thereto. 

•    4.  The  libel,  with  exhibits  annexed  thereto. 

5.  The  pleadings  of  the  defendant,  with  the  exhibits  an- 
nexed thereto. 

6.  The  testimony  on  the  part  of  the  libellant,  and  any 
exhibits  not  annexed  to  the  libel. 

7.  The  testimony  on  the  part  of  the  defendant,  and  any 
exhibits  not  annexed  to  his  pleadings. 

8.  Any  order  of  the  court  to  which  exception  was  made. 

9.  Any  report  of  an  assessor  or  assessors,  if  excepted  to, 
with  the  orders  of  the  court  respecting  the  same,  and  the  ex- 
ceptions to  the  report.  If  the  report  was  not  excepted  to, 
only  the  fact  that  a  reference  was  made,  and  so  much  of 
the  report  as  shows  what  results  were  arrived  at  by  the 
assessor,  are  to  be  stated. 

10.  The  final  decree. 

11.  The  prayer  for  an  appeal,  and  the  action  of  the  Distiict 
Court  thereon ;  and  no  reasons  of  appeal  shall  be  filed  or  in- 
serted in  the  transcript. 

The  following  shall  be  omitted :  — 

1.  The  continuances. 

2.  All  motions,  rules,  and  orders  not  excepted  to,  which 
are  merely  preparatory  for  trial. 

3.  The  commissions  to  take  depositions,  notices  therefor. 


APPENDIX.  335 

their  captions,  and  certificates  of  their  being  swom  to,  unless 
some  exception  to  a  deposition  in  the  District  Court  was 
founded  on  some  one  or  more  of  these  ;  in  which  case  so  much 
of  either  of  them  as  may  be  involved  in  the  exception  shall 
be  set  out.  In  all  other  cases  it  shall  be  sufficient  to  give  the 
names  of  the  witnesses,  and  to  copy  the  interrogatories  and 
answers,  and  to  state  the  name  of  the  commissioner,  and  the 
place  where  and  the  date  when  the  de|)Osition  was  sworn  to  ; 
and  in  copying  all  depositions  taken  on  interrogatories,  the 
answer  shall  be  inserted  immediately  following  the  question. 

II.  Certificate  of  Clerk.  —  The  clerk  of  the  District  Court 
shall  page  the  copy  of  the  record  thus  made  up,  and  shall  make 
an  index  thereto,  and  he  shall  certify  the  entire  document, 
at  the  end  thereof,  under  the  seal  of  the  court,  to  be  a  trans- 
cript of  the  record  of  the  District  Court  in  the  cause  named  at 
the  beginning  of  the  copy  made  up  pursuant  to  this  rule  ;  and 
no  other  certificate  of  the  record  shall  be  needful  or  inserted. 

Promulgated  December  Term,  1854,  17  How.  vi;  The  Grace  Girdler, 
6  Wall.  441;  White  v.  Cannon,  id.  443;  The  Vaughan  and  Telegraph, 
14  WaU.  258. 

III.  Amendsient  TO  Rule  52.  Record  on  Appeal.  —  Here- 
after, in  making  up  the  record  to  be  transmitted  to  the  Cir- 
cuit Court  on  appeal,  the  clerk  of  the  District  Court  shall 
omit  therefrom  any  of  the  pleadings,  testimony,  or  exhibits 
which  the  parties  by  their  proctors  shall  by  written  stipula- 
tion agree  may  be  omitted;  and  such  stipulation  shall  be 
certified  up  with  the  record. 

Promulgated  May  2,  1881. 

Rule  53.  Cross-libel,  Security  for  Costa  by  Respondent. — 
Whenever  a  cross-libel  is  filed  upon  any  counter-claim  arising 
out  of  the  same  cause  of  action  for  which  the  original  libel 
was  filed,  the  respondents  in  the  cross-libel  shall  give  security, 
in  the  usual  amount  and  form,  to  respond  in  damages  as 
claimed  in  said  cross-libel,  unless  the  court,  on  cause  shown, 
shall  otherwise  direct ;  and  all  proceedings  upon  the  original 
libel  shall  be  stayed  until  such  security  shall  be  given. 

Promulgated  December  Term,  1868,  7  Wall.  v. 


336  ADMIRALTY  LAW. 

Rule  54.  Suit  for  Embezzlement  of  Master,  &c.  —  When 
any  ship  or  vessel  shall  be  libelled,  or  the  owner  or  owners 
thereof  shall  be  sued  for  any  embezzlement,  loss,  or  destruc- 
tion by  the  master,  officers,  mariners,  passengers,  or  any  other 
person  or  persons,  of  any  property,  goods,  or  merchandise, 
shipped  or  put  on  board  of  such  ship  or  vessel,  or  for  any  loss, 
damage,  or  injury  by  collision,  or  for  any  act,  matter,  or  thing, 
loss,  damage,  or  forfeiture  done,  occasioned,  or  incurred  with- 
out the  privity  or  knowledge  of  such  owner  or  owners,  and 
he  or  they  shall  desire  to  claim  the  benefit  of  limitation  of 
liability  provided  for  in  the  third  and  fourth  sections  of  the 
said  act  above  recited,  the  said  owner  or  owners  shall  and 
may  file  a  libel  or  petition  in  the  proper  District  Court  of  the 
United  States,  as  hereinafter  specified,  setting  forth  the  facts 
and  circumstances  on  which  such  limitation  of  liability  is 
claimed,  and  praying  proper  relief  in  that  behalf ;  and  there- 
upon said  court,  having  caused  due  appraisement  to  be  had 
of  the  amount  or  value  of  the  interest  of  said  owner  or  own- 
ers, respectively,  in  such  ship  or  vessel,  and  her  freight  for 
the  voyage,  shall  make  an  order  for  the  payment  of  the  same 
into  court,  or  for  the  giving  of  a  stipulation  with  sureties  for 
payment  thereof  into  court,  whenever  the  same  shall  be  or- 
dered ;  or,  if  the  said  owner  or  owners  shall  so  elect,  the  said 
court  shall,  without  such  appraisement,  make  an  order  for  the 
transfer  by  him  or  them  of  his  or  their  interest  in  such  vessel 
and  freight,  to  a  trustee  to  be  appointed  by  the  court  under 
the  fourth  section  of  said  act ;  and  upon  compliance  with 
such  order,  the  said  court  shall  issue  a  monition  against  all 
persons  claiming  damages  for  any  such  embezzlement,  loss, 
destruction,  damage,  or  injury,  citing  them  to  appear  before 
the  said  court  and  make  due  proof  of  their  respective  claims 
at  or  before  a  certain  time  to  be  named  in  said  writ,  not  less 
than  three  months  from  the  issuing  of  the  same  ;  and  public 
notice  of  such  monition  shall  be  given  as  in  other  cases,  and 
such  further  notice  served  through  the  post-office,  or  other- 
wise, as  the  court,  in  its  discretion,  may  direct ;  and  the  said 
court  shall  also,  on  the  application  of  the  said  owner  or  own- 
ers, make  an  order  to  restrain  the  further  prosecution  of  all 


APPENDIX.  837 

and  any  suit  or  suits  against  said  owner  or  owners  in  respect 
of  any  such  claim  or  claims. 

Promulgated  May  6,  1872,  13  Wall,  xii;  The  Bristol,  4  Ben.  55. 

Rule  55.  Proof  of  Claims,  before  whom  made.  —  Proof  of 
all  claims  which  shall  be  presented  in  pursuance  of  said  mo- 
nition, shall  be  made  before  a  commissioner  to  be  designated 
by  the  court,  subject  to  the  right  of  any  person  interested  to 
question  or  controvert  the  same  ;  and,  upon  the  completion  of 
said  proofs,  the  commissioner  shall  make  report  of  the  claims 
so  proven,  and  upon  confirmation  of  said  report,  after  hearing 
any  exceptions  thereto,  the  moneys  paid  or  secured  to  be  paid 
into  court  as  aforesaid,  or  the  proceeds  of  said  ship  or  vessel 
and  freight  (after  payment  of  costs  and  expenses)  shall  be 
divided  pro  rata  amongst  the  several  claimants  in  proportion 
to  the  amount  of  their  respective  claims,  duly  proved  and 
confirmed  as  aforesaid,  saving,  however,  to  all  parties  any 
priority  to  which  they  may  be  legally  entitled. 

Promulgated  May  6,  1872,  13  Wall,  xiii;  Providence  &  N.  Y.  S.  S. 
Co.,  15  Int.  Rev.  Rec.  193. 

Rule  56.  "Who  may  defend.  —  In  the  proceedings  aforesaid, 
the  said  owner  or  owners  shall  be  at  liberty  to  contest  his  or 
their  liability,  or  the  liability  of  said  ship  or  vessel,  for  said 
embezzlement,  loss,  destruction,  damage,  or  injury  (indepen- 
dently of  the  limitation  of  liability  claimed  under  said  act)  : 
Provided^  That  in  his  or  their  libel  or  petition  he  or  they  shall 
state  the  facts  and  circumstances  by  reason  of  which  exemp- 
tion from  liability  is  claimed  ;  and  any  person  or  persons 
claiming  damages  as  aforesaid,  and  who  shall  have  presented 
his  or  their  claim  to  the  commissioner  under  oath,  shall  and 
may  answer  such  libel  or  petition,  and  contest  the  right  of 
the  owner  or  owners  of  said  ship  or  vessel,  either  to  an  ex- 
emption from  liability,  or  to  a  limitation  of  liability,  under 
the  said  act  of  Congress,  or  both. 

Promulgated  May  6,  1872,  13  Wall.  xiii. 

Rule  57.  Jurisdiction,  where  it  attaches.  —  The  said  libel 
or  petition  shall  be  filed  and  the  said  proceedings  had  in  any 
District  Court  of  the  United  States  in  which  said  ship  or 

22 


338  ADMIRALTY  LAW. 

vessel  may  be  libelled  to  answer  for  any  such  embezzlement, 
loss,  destruction,  damage,  or  injury;  or  if  the  said  ship  or 
vessel  be  not  libelled,  then  in  the  District  Court  for  any  dis- 
trict in  which  the  said  owner  or  owners  may  be  sued  in  that 
behalf.  If  the  ship  have  already  been  libelled  and  sold,  the 
proceeds  shall  represent  the  same  for  the  purposes  of  these 
rules. 

Promulgated  May  6,  1872,  13  Wall.  xiii. 

Rule  68.  Rules  applicable  to  Circuit  Courts.  —  All  the  pre- 
ceding rules  and  regulations  for  proceeding  in  cases  where 
the  owner  or  owners  of  a  ship  or  vessel  shall  desire  to  claim 
the  benefit  of  limitation  of  liability,  provided  for  in  the  act  of 
Congress  in  that  behalf,  shall  apply  to  the  Circuit  Courts  of 
the  United  States  where  such  cases  are  or  shall  be  pending  in 
said  courts  upon  appeal  from  the  District  Courts. 

Promulgated  March  30,  1881. 

Rule  59. — In  suit  for  damage  by  collision,  if  the  claimant  of  any 
vessel  proceeded  against,  or  any  respondent  proceeded  against,  in  personam, 
shall  by  petition  on  oath,  presented  before  or  at  the  time  of  answering  the 
libel,  or  within  such  further  time  as  the  court  mayallow,  and  containing 
suitable  allegations  showing  the  fault  or  negligence  in  any  other  vessel 
contributing  to  the  same  collision,  and  particulars  thereof,  and  that  such 
other  vessel,  or  any  other  party,  ought  to  be  proceeded  against  in  the 
same  suit  for  such  damage,  pray  that  process  be  issued  against  such  vessel 
or  party  to  that  end,  sucli  process  may  be  issued,  and  if  duly  served,  such 
suit  shall  proceed  as  if  such  vessel  or  party  had  been  originally  proceeded 
against ;  other  parties  in  suit  shall  answer  the  petition.  The  claimant  of 
such  vessel,  or  such  new  party,  shall  answer  the  libel,  and  such  further 
proceedings  shall  be  had  and  decree  rendered  by  the  court  in  the  suit  as 
to  law  and  justice  shall  appertain.  But  every  such  petitioner  shall,  upon 
filing  his  petition,  give  a  stipulation,  with  sufficient  sureties,  to  pay  to 
libeliant,  and  to  any  claimant  or  new  party  brought  in  by  virtue  of  such 
process,  all  such  costs,  damages,  and  expenses  as  shall  be  awarded  against 
petitioner  by  the  court  upon  final  decree,  whether  rendered  in  the  original 
or  appellate  court,  and  any  such  claimant  or  new  party  shall  give  the 
same  bonds  or  stipulations  which  are  required  in  like  cases  from  parties 
brought  in  under  the  process  issued  on  prayer  of  libeliant. 

Promulgated  March  'J6,  1883. 


RULES 

OF  THE 

SUPREME  COURT  OF   THE  UNITED   STATES 

APPLICABLE  IN  ADMIRALTY. 


AMENDJfENT  TO  RULE  8.  The  Record  in  canses  of  admi< 
ralty  and  maritime  jurisdiction,  when  under  the  requirements 
of  law  the  facts  have  been  found  in  the  court  below,  and  our 
power  of  review  is  limited  to  the  determination  of  questions 
of  law  arising?  on  the  record,  shall  be  confined  to  the  plead- 
ings, the  findings  of  fact  and  conclusions  of  law  thereon,  the 
bills  of  exceptions,  the  final  judgment  or  decree,  and  such 
interlocutory  orders  and  decrees  as  may  be  necessary  to  a 
proper  review  of  the  case. 

Promulgated  May  2,  1881. 

Rule  9.  Docketing  Cases.  Duties  of  Parties.  —  In  all  Cases 
where  a  writ  of  error  or  an  appeal  shall  be  brought  to  this 
court  from  any  judgment  or  decree  rendered  thirty  days  be- 
fore the  commencement  of  the  term,  it  shall  be  the  duty  of 
the  plaintiff  in  error  or  appellant,  as  the  case  may  be,  to 
docket  the  cause  and  file  the  record  thereof  with  the  clerk 
of  this  court  within  the  first  six  days  of  the  term  ;  and  if  the 
writ  of  error  or  appeal  shall  be  brought  from  a  judgment  or 
decree  rendered  less  than  thirty  days  before  the  commence- 
ment of  the  term,  it  shall  be  the  duty  of  the  plaintiff  in  error 
or  appellant  to  docket  the  cause,  and  file  the  record  thereof 
with  the  clerk  of  this  court  within  the  first  thirty  days  of  the 
term ;  and  if  the  plaintiff  in  error  or  appellant  shall  fail  to 


340  ADMIRALTY  LAW. 

comply  with  this  rule,  the  defendant  in  error  or  appellee  may 
have  the  case  docketed  and  dismissed,  upon  producing  a  cer- 
tificate from  the  clerk  of  the  court  wherein  the  judgment  or 
decree  was  rendered,  stating  the  cause,  and  certifying  that 
such  writ  of  error  or  appeal  has  been  duly  sued  out  and  al- 
lowed. And  in  no  case  shall  the  plaintiff  in  error  or  appellant 
be  entitled  to  docket  the  cause  and  file  the  record  after  the 
same  shall  have  been  docketed  and  dismissed  under  this  rule, 
unless  by  order  of  the  court. 

Original  Rule  16,  February  Term,  1803, 1  Cranch,  xviii;  1  AVheat.  xvi; 
1  Pet.  vii.  Rule  19,  February  Terra,  1806,  1  Wheat,  xvi;  1  Pet.  viii; 
Rule  32,  promulgated  February  Term,  1821,  6  Wheat,  vi.  Rule  29,  1  Pet. 
X.  Rule  43,  Januaiy  Term,  1835,  9  Pet.  vii.  Rule  63,  December  Term, 
1853,  16  How.  ix.     Revised  December  Term,  1858,  21  How.  vii. 

Bingham  v.  Morris,  7  Cranch,  99;  The  Jonquille,  6  Wheat.  452;  Pick- 
ett V.  Legerwood,  7  Pet.  144;  Veitch  v.  Farmers'  Bank,  6  Pet.  777;  Yea- 
ton  V.  Lenox,  8  Pet.  123;  Owings  v.  Tiernan,  10  Pet.  24;  West  v. 
Brashear,  12  Pet.  101;  Amis  v.  Pearl,  15  Pet.  211;  Gwin  v.  Breedlove,  15 
Pet.  381;  Holliday  v.  Batson,  4  How.  645;  United  States  v.  Boisdore, 
7  How.  658;  Smith  v.  Clark,  12  How.  21;  Kirkland  v.  Union  Bank  of 
Louisiana,  16  How.  135;  United  States  v.  Fremont,  18  How.  .30;  Sturgess 
V.  Harrold,  id.  40;  Steamer  Virginia  v.  West,  19  How.  182;  Rogers  v. 
Law,  21  How.  526;  Overton  v.  Cheek,  22  How.  46;  Mesa  ».  United 
States,  2  Black,  721 ;  Castro  v.  United  States,  3  Wall.  46 ;  Sparrow  v. 
Strong,  id.  97;  Garrison  v.  Cass  Co.,  5  Wall.  823;  German  v.  United 
States,  5  Wall.  825;  Edmonson  v.  BloomsMre,  7  W^all.  306. 

Rule  12.  Evidence.  1.  Further  Proof.  —  In  all  cases  where 
further  proof  is  ordered  by  the  court,  the  depositions  which 
shall  be  taken  shall  be  by  a  commission  to  be  issued  from 
this  court,  or  from  any  Circuit  Court  of  the  United  States. 

Original  Rule  25,  promulgated  February  Term,  1816,  1  Wheat,  xix. 
Rule  24,  1  Pet.  ix. 

Brig  James  Wells  v.  United  States,  7  Cranch,  22;  Hawthorne  v.  United 
States,  id.  107;  The  Western  Metropolis,  12  Wall.  389. 

2.  In  Maritime  Cases.  —  In  all  cases  of  admiralty  and  mari- 
time jurisdiction,  where  new  evidence  shall  be  admissible  in 
this  court,  the  evidence  by  testimony  of  witnesses  shall  be 
taken  under  a  commission  to  be  issued  from  this  court,  or 
from  any  Circuit  Court  of  the  United  States,  under  the 
direction  of  any  judge  thereof ;  and  no  such  commission  shall 


APPEXDIX.  341 

issue  but  upon  interrogatories  to  be  filed  by  the  party  ap- 
plying for  the  commission,  and  notice  to  the  opposite  party 
or  his  agent  or  attorney,  accompanied  with  a  copy  of  the 
interrogatories  so  filed,  to  file  cross-interrogatories  within 
twenty  days  from  the  service  of  such  notice :  Provided.^  how- 
ever^ That  nothing  in  this  rule  shall  prevent  any  party  from 
giving  oral  testimony  in  open  court  in  cases  where,  by  law,  it 
is  admissible. 

Original  Rule  32,  promulgated  February  Term,  1817,  2  Wheat,  vii; 
1  Pet.  ix. 

The  St.  Lawrence,  8  Cranch,  434;  The  Frances,  id.  354;  The  Eu- 
phrates, id.  385;  The  Mary,  id.  388;  The  Grotius.  id.  456;  Schooner 
Adeline,  9  Cranch,  288;  The  Samuel,  1  Wheat.  9;  The  Venus,  id.  112; 
The  Dos  Ilermanos,  2  Wheat.  77;  The  London  Packet,  id.  371;  The 
Fortuna,  3  Wheat.  236;  The  Atalanta,  id.  409;  The  Friendschaft,  id.  14; 
The  Experiment,  4  Wheat.  84;  The  Venus,  5  Wheat.  127;  The  Western 
Metropolis,  12  Wall.  389. 

Rule  24.  Costs,  i.  On  Dismissal.  —  In  all  cases  where  any 
suit  shall  be  dismissed  in  this  court,  except  where  the  dismis- 
sal shall  be  for  want  of  jurisdiction,  costs  shall  be  allowed  to 
the  defendant  in  error  or  appellee,  as  the  case  may  be,  unless 
otherwise  agreed  by  the  parties. 

Original  Rule  45,  promulgated  January  Ter;ii,  1838,  12  Pet.  vii. 

Winchester  v.  Jackson,  3  Cranch,  515;  Inglee  v.  Coolidge,  2  Wheat. 
363;  Mclver  v.  Wattles,  9  Wheat.  6.50;  Brown  v.  Union  Bank  of  Florida, 
4  How.  466;  Strader  v.  Graham,  18  How.  602. 

2.  On  Affirmance.  —  In  all  cases  of  affirmance  of  any  judg- 
ment or  decree  in  this  court,  costs  shall  be  allowed  to  the 
defendant  in  error  or  appellee,  as  the  case  may  be,  unless 
otherwise  ordered  by  the  court. 

Original  Rule  46,  promulgated  January  Term,  1838, 12  Pet.  vii. 
Walton  V.  United  States,  9  Wheat.  658;  Gierke  v.  Harwood,  3  Dall. 
343;  Campbell  v.  Gordon,  6  Cranch,  183. 

3.  On  Reversal.  —  In  cases  of  reversal  of  any  judgment  or 
decree  in  this  court,  costs  shall  be  allowed  to  the  plaintiff  in 
error  or  appellant,  as  the  case  may  be,  unless  otherwise  or- 
dered by  the  court.  The  costs  of  the  transcript  of  the  record 
from  the  court  below  shall  be  a  part  of  such  costs,  and  be 
taxable  in  that  court  as  costs  in  the  case. 


342  ADMIRALTY  LAW. 

Original  Rule  22,  promulgated  February  Term,  1810,  1  ^V^leat.  xviii; 
1  Pet.  ix.  Rule  47,  promulgated  January  Term,  1838,  12  Pet.  vii. 
Amendment,  promulgated  December  Term,  1863,  1  Wall.  v. 

Montalet  v.  Murray,  4  Cranch,  46;  McKnight  v.  Craig,  6  Cranch,  187; 
Bradstreet  v.  Potter,  16  Pet.  317. 

4.  United  States  exempt.  —  Neither  of  the  foregoing  rules 
shall  apply  to  cases  where  the  United  States  are  a  party  ;  but 
in  such  cases  no  costs  shall  be  allowed  in  this  court  for  or 
against  the  United  States. 

Original  Rule  48,  promulgated  January  Term,  1838,  12  Pet.  vii. 

United  States  v.  La  Vengeance,  3  Dall.  301;  United  States  v.  Hove,  3 
Cranch,  73;  United  States  r.  Barker,  2  Wheat.  395;  The  Antelope,  12 
Wheat.  546;  United  States  v.  Ringgold,  8  Pet.  103;  United  States  v.  Mc- 
Lemore,  4  How.  286 ;  United  States  v.  Boyd,  5  How.  30. 

5.  Mandate.  —  In  all  cases  of  the  dismissal  of  any  suit  in 
this  court,  it  shall  be  the  duty  of  the  clerk  to  issue  a  man- 
date or  other  proper  process,  in  the  nature  of  a  procedendo,  to 
the  court  below,  for  the  purpose  of  informing  such  court  of 
the  proceedings  in  this  court,  so  that  further  proceedings  may 
be  had  in  such  court  as  to  law  and  justice  may  appertain. 

Original  Rule  49,  promulgated  January  Term,  1838,  12  Pet.  vii. 

The  Santa  Maria,  10  Wheat.  431;  Skillern  v.  Meigs,  6  Cranch,  267 
Ex  parte  Story,   12  Pet.   344;    Poultney  v.  City  of  Lafayette,    id.  472 
Ex  parte  Sibbald  v.  United  States,  id.  493;  Westu.  Brashear,  14  Pet.  51 
Mitchel  V.  United  States,  15  Pet.  52;  Cutler  v.  Rae,  7  How.  737;  Ken- 
nedy V.  Bank  of  Georgia,  8  How.  586 ;  Stafford  v.  Union  Bank  of  Louisi- 
ana, 16  How.  135;  United  States  v.  Fremont,  18  How.  30. 

6.  Costs  to  be  inserted.  —  When  costs  are  allowed  in  this 
court,  it  shall  be  the  duty  of  the  clerk  to  insert  the  amount 
thereof  in  the  body  of  the  mandate,  or  other  proper  process, 
sent  to  the  court  below,  and  annex  to  the  same  the  bill  of 
items  taxed  in  detail. 

Original  Rule  50,  promulgated  January  Term,  1838,  12  Pet.  vii. 
See  Story  v.  Livingston,  13  Pet.  359. 

In  admiralty  cases  costs  may  be  apportioned.  Penhallow  v.  Doane, 
3  Dall.  54. 

Rule  29.  Supersedeas.  Bond  of  Indemnity.  —  Supersedeas 
bonds  in  the  Circuit  Courts  must  be  taken,  Avith  good  and 
sufficient   security,  that   the  plaintiff  in  error   or  appellant 


APPENDIX.  343 

shall  prosecute  his  writ  or  appeal  to  effect,  and  answer  all 
damages  and  costs  if  he  fail  to  make  his  plea  good.  Such  in- 
demnity, where  the  judgment  or  decree  is  for  the  recovery  of 
money  not  otherwise  secured,  must  De  for  the  whole  amount 
of  the  judgment  or  decree,  including  "just  damages  for  de- 
lay," and  costs  and  interest  on  the  appeal ;  but  in  all  suits 
where  the  property  in  controversy  necessarily  follows  the 
event  of  the  suit,  as  in  real  actions,  replevin,  and  in  suits  on 
mortgages  ;  or  where  the  property  is  in  the  custody  of  the 
marshal,  under  admiralty  process,  as  in  case  of  capture  or 
seizure ;  or  where  the  proceeds  thereof,  or  a  bond  for  the 
value  thereof,  is  in  the  custody  or  control  of  the  court,  — in- 
demnity in  all  such  cases  is  only  required  in  an  amount  suflB- 
cient  to  secure  the  sum  recovered  for  the  use  and  detention 
of  the  property  and  the  costs  of  the  suit  and  "just  damages 
for  delay,"  and  costs  and  interest  on  the  appeal. 

Original  Rule  32,  promulgated  December  Term,  1807,  6  Wall.  v. 

Rules  which  govern  sufficiency  of  security,  French  v.  Shoemaker,  12 
Wall.  88;  Stafford  v.  Union  Bank  of  Loui-siana,  18  How.  135;  Bigler  v. 
Waller,  id.  U2;  Jerome  v.  McCarter,  21  Wall.  17. 


REVISED  STATUTES  OF  THE  UNITED   STATES 

APPLICABLE  IN  ADMIRALTY. 


Sect.  631.  Appeals  in  Admiralty  Causes.  —  From  all  final 
decrees  of  a  District  Court  in  causes  of  equity  or  of  admiralty 
and  maritime  jurisdiction,  except  prize  causes,  where  the  mat- 
ter in  dispute  exceeds  the  sum  or  value  of  fifty  dollars,  exclu- 
sive of  costs,  an  appeal  shall  be  allowed  to  the  Circuit  Court 
next  to  be  held  in  such  district,  and  such  Circuit  Court  is 
required  to  receive,  hear,  and  determine  such  appeal. 

1  U.  S.  Stat.  83;  2  id.  244;  13  id.  310;  17  id.  196.  Mordecai  v.  Lind- 
say, 19  How.  200;  Montgomery  v.  Anderson,  21  How.  388;  United  States 
V.  Wonson,  1  Gallis.  6;  McLellan  v.  United  States,  id.  229;  Brig  HoUen, 
1  Mason,  434. 

Sect.  1007.  Supersedeas.  —  In  any  case  where  a  writ  of 
error  may  be  a  supersedeas^  the  defendant  may  obtain  such 
supersedeas  by  serving  the  writ  of  error,  by  lodging  a  copy 
thereof  for  the  adverse  party  in  the  clerk's  office  where  the 
record  remains,  within  sixty  days,  Sundays  exclusive,  after 
the  rendering  of  the  judgment  complained  of,  and  giving  the 
security  required  by  law  on  the  issuing  of  the  citation.  But 
if  he  desires  to  stay  process  on  the  judgment,  he  may,  having 
served  his  writ  of  error  as  aforesaid,  give  the  security  required 
by  law  within  sixty  days  after  the  rendition  of  such  judgment, 
or  afterward  with  the  permission  of  a  justice  or  judge  of  the 
appellate  court.  And  in  such  cases  where  a  writ  of  error  may 
be  a  supersedeas^  executions  shall  not  issue  until  the  expira- 
tion of  ten  ^  days. 

1  U.  S.  Stat.  85;  17  id.  198.  Hogan  v.  Ross,  11  How.  294;  Stafford  v. 
Union  Bank,  16  How.  135;  Adams  v.  Law,  id.  144;  Hudgins  v.  Kemp, 

1  As  amended  by  act  of  Feb.  18,  1875, 


APPENDIX.  345 

18  How.  531;  Green  v.  Van  Buskerk,  3  Wall.  448;  Ex  parte  Milwaukee 
R.  R.  Co.,  5  Wall.  188;  City  of  Washington  v.  Dennison,  6  Wall.  495; 
Railroad  Co.  v.  Harris,  7  Wall.  574;  French  v.  Shoemaker,  12  Wall.  8Q; 
Bigler  v.  Waller,  id.  142  ;  Telegraph  Co.  v.  Eyser,  19  Wall.  419;  Board 
of  Commissioners  t>.  Gorman,  id.  661. 

Sect.  1008.  Writs  of  Error  and  Appeals  to  Supreme  Court, 
Time  for  taking.  —  No  judgment,  decree,  or  order  of  a  Circuit 
or  District  Court,  in  any  civil  action,  at  law  or  in  equity,  shall 
be  reviewed  in  the  Supreme  Court,  on  writ  of  error  or  appeal, 
unless  the  writ  of  error  is  brought,  or  the  appeal  is  taken,  within 
two  years  after  the  entry  of  such  judgment,  decree,  or  order : 
Provided,  That  where  a  party  entitled  to  prosecute  a  writ  of 
error  or  to  take  an  appeal  is  an  infant,  insane  person,  or  impris- 
oned, such  writ  of  error  may  be  prosecuted,  or  such  appeal  may 
be  taken,  within  two  years  after  the  judgment,  decree,  or  order, 
exclusive  of  the  term  of  such  disability.     [See  sect.  635.] 

17  U.  S.  Stat.  196.  Thomas  v.  Brockenborcugh,  10  Wheat.  146; 
Brooks  ».  Norris,  11  How.  204;  Hanger  r.  Abbott,  6  WaU.  532;  The  Pro- 
tector, 9  Wall.  687. 

Sect.  574.  Court  always  open  for  Certain  Purposes.  —  The 
District  Courts,  as  courts  of  admiralty,  and  as  courts  of  equity, 
80  far  as  equity  jurisdiction  has  been  conferred  upon  them, 
shall  be  deemed  always  open,  for  the  purpose  of  filing  any 
pleading,  of  issuing  and  returning  mesne  and  final  process, 
and  of  making  and  directing  all  interlocutory  motions,  orders, 
rules,  and  other  proceedings,  preparatory  to  the  hearing, 
upon  their  merits,  of  all  causes  pending  therein.  And  any 
district  judge  may,  upon  reasonable  notice  to  the  parties, 
make,  and  direct,  and  award,  at  chambers,  or  in  the  clerk's 
oflBce,  and  in  vacation  as  well  as  in  term,  all  such  process, 
commissions,  orders,  rules,  and  other  proceedings,  whenever 
the  same  are  not  gran  table  of  course,  according  to  the  rules 
and  practice  of  the  court. 
5  U.  S.  Stat.  517. 

Sect.  858.  No  "Witness  excluded  on  Account  of  Color  or  In- 
terest —  In  the  courts  of  the  United  States  no  witness  shall 
be  excluded  in  any  action  on  account  of  color,  or  in  any 
civil  action  because  he  is  a  party  to  or  interested  in  the  issue 
tried:  Provided,  That  in  actions  by   or  against  executors, 


346  ADMIRALTY  LAW. 

administrators,  or  guardians,  in  which  judgment  may  be  ren- 
dered for  or  against  them,  neither  party  shall  be  allowed  to 
testify  against  the  other,  as  to  any  transaction  with,  or  state- 
ment by,  the  testator,  intestate,  or  ward,  unless  called  to  tes- 
tify thereto  by  the  opposite  party,  or  required  to  testify 
thereto  by  the  court.  In  all  other  respects,  the  laws  of  the 
State  in  which  the  court  is  held  shall  be  the  rules  of  de- 
cision as  to  the  competency  of  witnesses  in  the  courts  of  the 
United  States  in  trials  at  common  law,  and  in  equity  and 
admiralty.     [See  sect.  1977.] 

13  U.  S.  Stat.  351;  13  id.  533;  12  id.  588.  United  States  v.  Murphy, 
16  Pet.  203;  Smyth  v.  Strader,  4  How.  420;  United  States  v.  Reid,  12 
How.  361;  Wright  v.  Bales,  2  Black,  535;  Green  v.  United  States,  9 
Wall.  655;  Lucas  v.  Brooks,  18  WaU.  436;  Texas  v.  Chiles,  21  Wall. 
488. 

Sect.  862.  Mode  of  Proof  in  Equity  and  Admiralty  Causes. 
—  The  mode  of  proof  in  causes  of  equity  and  of  admiralty 
and  maritime  jurisdiction  shall  be  according  to  rules  now  or 
hereafter  prescribed  by  the  Supreme  Court,  except  as  herein 
specially  provided. 

5  U.  S.  Stat.  518. 

Sect.  863,  Depositions  De  Bene  Esse.  —  The  testimony  of 
any  witness  may  be  taken  in  any  civil  cause  depending  in  a 
District  or  Circuit  Court  by  deposition  de  bene  esse,  when  the 
witness  lives  at  a  greater  distance  from  the  place  of  trial  than 
one  hundred  miles,  or  is  bound  on  a  voyage  to  sea,  or  is  about 
to  go  out  of  the  United  States,  or  out  of  the  district  in  which 
the  case  is  to  be  tried,  and  to  a  greater  distance  than  one 
hundred  miles  from  the  place  of  trial,  before  the  time  of  trial, 
or  when  he  is  ancient  and  infirm.  The  deposition  may  be 
taken  before  any  judge  of  any  court  of  the  United  States,  or 
any  commissioner  of  a  Circuit  Court,  or  any  clerk  of  a  Dis- 
trict or  Circuit  Court,  or  any  chancellor,  justice,  or  judge  of 
a  Supreme  or  Superior  Court,  mayor  or  chief  magistrate  of  a 
city,  judge  of  a  County  Court  or  Court  of  Common  Pleas  of 
any  of  the  United  States,  or  any  notary  public,  not  being  of 
counsel  or  attorney  to  either  of  the  parties,  nor  interested 
in  the  event  of  the  cause.     Reasonable  notice  must  first  be 


APPENDIX.  347 

given  in  writing  by  the  party  or  his  attorney  proposing  to 
take  such  deposition,  to  the  opposite  party  or  his  attorney 
of  record,  as  either  may  be  nearest,  which  notice  shall  state 
the  name  of  the  witness  and  the  time  and  place  of  the  taking 
of  his  deposition  ;  and  in  all  cases  in  rem,  the  person  having 
the  agency  or  possession  of  the  property  at  tlie  time  of  seiz- 
ure shall  be  deemed  the  adverse  party,  until  a  claim  shall 
have  been  put  in  ;  and  whenever,  by  reason  of  the  absence 
from  the  district  and  want  of  an  attorney  of  record  or  other 
reason,  the  giving  of  the  notice  herein  required  shall  be  im- 
practicable, it  shall  be  lawful  to  take  such  depositions  as 
there  shall  be  urgent  necessity  for  taking,  upon  such  notice 
as  any  judge  authorized  to  hold  courts  in  such  circuit  or  dis- 
trict shall  think  reasonable  and  direct.  Any  person  may  be 
compelled  to  appear  and  depose  as  provided  by  this  section, 
in  the  same  manner  as  witnesses  may  be  compelled  to  appear 
and  testify  in  court. 

1  U.  S.  Stat.  88;  3  id.  350;  10  id.  163;  10  id.  315;  17  id.  89. 

When  authorized,  AUen  r.  Blunt,  2  Woodb.  &  M.  122;  Buckingham 
r.  Burgess,  3  McLean,  368;  Curtis  v.  Central  R.  R.,  6  McLean,  401;  Petti- 
bone  r.  Derringer,  4  Wash.  C.  C.  215;  Prouty  r.  Draper,  2  Story,  199; 
Russell  V.  Ashley,  Hempst.  546;  Tooker  v.  Thompson,  3  McLean,  92. 
Conditions  enumerated,  Harris  v.  Wall,  7  How.  693.  To  be  taken  by 
commission,  The  Argo,  2  Wheat.  287;  The  London  Packet,  id.  371; 
Patapsco  Ins.  Co.  v.  Southgate,  5  Pet.  616;  Stein  v.  Bowman,  13  Pet. 
209;  Hoyt  v.  Hammekin,  14  How.  350.  Who  may  take.  Fowler  v.  Mer- 
rill, 11  How.  375;  Price  v.  Morris,  5  McLean,  4;  Ruggles  v.  Bucknor,  1 
Paine  C.  C.  358;  Voce  r.  Lawrence,  4  McLean,  203;  Whitney  o.  Huntt, 
5  Cranch  C.  C.  120.  Strict  conformity  to  statute  required,  Shutte  v. 
Thompson,  15  Wall.  151;  Bell  v.  Morrison,  1  Pet.  355;  Evans  w.  Hettich, 
3  Wash.  C.  C.  409;  Luther  v.  The  Merritt  Hunt,  Newb.  4;  Thorpe  r. 
Simmons,  2  Cranch  C.  C.  195;  Edmondson  r.  Barrell,  id.  228.  Notice 
to  adverse  party.  The  Argo,  2  Gall.  314;  Barrell  r.  Limington,  4  Cranch 
C.  C.  70;  Bell  v.  Newmon,  4  McLean,  539;  Buddicum  v.  Kirke,  3  Cranch, 
293;  Bussard  v.  Catalino,  2  Cranch  C.  C  421;  Cahoon  v.  Ring,  1  Cliff. 
592;  Carrington  v.  Stimson,  1  Curt.  437;  Debutts  v.  McCuUoch,  1  Cranch 
C.  C.  286;  Dick  v.  Runnels,  5  How.  7:  Dinsmore  v.  Maroney,  4  Blatchf. 
416;  Goodhue  v.  Bartlett,  5  McLean,  186;  Merrill  v.  Dawson,  Hempst. 
563;  Miller  v.  Young,  2  Cranch  C.  C  53;  Nelson  c.  Woodruff.  1  Black, 
156;  The  Samuel,  1  Wheat  16;  Walsh  v.  Rogers,  13  How.  283;  Wilkin- 
son r.  Yale,  6  McLean,  18.  Cro8.s-examiiiation,  right  of,  Dade  v.  Young, 
1  Cranch  C.  C.  123 ;  The  Ottawa,  3  Wall.  271 ;  Tappan  v.  Beardsley, 


348  ADMIRALTY  LAW. 

10  Wall.  427.  Compulsion  of  witness,  Barnet  v.  Day,  3  Wash.  C.  C. 
243;  Ex  parte  Humphrey,  2  Blatchf.  228;  In  re  Judson,  3  Blatchf.  148; 
Ex  parte  Beck,  id.  113.  Certificate,  sufficiency  of,  Banks  v:  Miller, 
1  Cranch  C.  C.  543;  Brown  v.  Piatt,  2  Cranch  C.  C.  253;  Centre  v. 
Keene,  id.  198;  Garrett  v.  Woodward,  id.  190;  Moore  v.  Nelson,  3 
McLean,  384;  Paul  v.  Lowry,  2  Cranch  C.  C.  628;  Peyton  ».  Veitch,  id. 
123;  Rainer  v.  Haynes,  Hempst.  689;  Vasse  v.  Smith,  2  Cranch  C.  C. 
31;  Woodward  v.  Hall,  id.  235.  Caption,  sufficiency  of,  Wheaton  v. 
Love,  1  Cranch  C.  C.  451;  Van  Ness  v.  Heinecke,  2  Cranch  C.  C.  259. 
Objections,  when  to  be  taken,  Mechanics'  Bank  v.  Seaton,  1  Pet.  307; 
The  Thomas  and  Henry  v.  United  States,  1  Brock.  367;  United  States  v. 
Case  of  Hair  Pencils,  1  Paine  C.  C.  400. 

Sect.  864.  Mode  of  taking  Depositions  De  Bene  Esse. —  Every 
person  deposing  as  provided  in  the  preceding  section,  shall 
be  cautioned  and  sworn  to  testify  the  whole  truth,  and  care- 
fully examined.  His  testimony  shall  be  reduced  to  writing 
by  the  magistrate  taking  the  deposition,  or  by  himself  in  the 
magistrate's  presence,  and  by  no  other  person,  and  shall,  after 
it  has  been  reduced  to  writing,  be  subscribed  by  the  depo- 
nent. 

1  U.  S.  Stat.  88;  17  id.  89.  Bell  v.  Morrison,  1  Pet.  351;  Patapsoo 
Ins.  Co.  V.  Southgate,  5  Pet.  604;  Cook  v.  Burnley,  11  Wall.  659;  Shutte 
V.  Thompson,  15  Wall.  151;  Moore  v.  Nelson,  3  McLean,  383;  Jones  v. 
Knowles,  1  Cranch  C.  C.  523;  Marstin  v.  McRea,  Hempst.  688;  Rainer  v. 
Haynes,  Hempst.  689;  Thorpe  v.  Simmons,  2  Cranch  C.  C.  195;  Centre 
V.  Keene,  id.  198;  Edmondsoa  v.  Barrell,  id.  228;  Bussard  v.  Catalino, 
id.  421. 

Sect.  865.  Transmission  to  the  Court  of  Depositions  De  Bene 
Esse.  —  Every  deposition  taken  under  the  two  preceding  sec- 
tions shall  be  retained  by  the  magistrate  taking  it,  until  he 
delivers  it  with  his  own  hand  into  the  court  for  which  it  is 
taken ;  or  it  shall,  together  with  a  certificate  of  the  reasons 
as  aforesaid  of  taking  it  and  of  the  notice,  if  any,  given  to 
the  adverse  party,  be  by  him  sealed  up  and  directed  to  such 
court,  and  remain  under  his  seal  until  opened  in  court.  But 
unless  it  appears  to  the  satisfaction  of  the  court  that  the  wit- 
ness is  then  dead,  or  gone  out  of  the  United  States,  or  to  a 
greater  distance  than  one  hundred  miles  from  the  place  where 
the  court  is  sitting,  or  that,  by  reason  of  age,  sickness, 
bodily  infirmity,  or  imprisonment,  he  is  unable  to  travel  and 


APPENDIX.  349 

appear  at   court,  such  deposition  shall  not  be  used  in  the 
cause. 

1  U.  S.  Stat.  88.  Beale  v.  Thompson,  8  Cranch,  70;  Evans  r.  Hettich, 
7  Wlieat.  453;  Harris  t;.  Wall,  7  How.  693;  Shaiikwiker  v.  Reading,  4 
McLean,  240;  Thorp  v.  Orr,  2  Cranch  C.  C.  335. 

Sect.  866.  Depositions  under  a  Dedimus  Potestatem  and  in 
Perpetuam,  &c.  —  In  ai)y  case  where  it  is  necessar}-,  in  order 
to  prevent  a  failure  or  delay  of  justice,  any  of  tlie  courts  of 
the  United  States  may  grant  a  dedimus  potestatem  to  take  dep- 
ositions according  to  common  usage ;  and  any  Circuit  Court, 
upon  application  to  it  as  a  court  of  equity,  may,  according  to 
the  usages  of  chancery,  direct  depositions  to  be  taken  in  per- 
petuam ret  memoriam^  if  they  relate  to  any  matters  that  may 
be  cognizable  in  any  court  of  the  United  States.  And  the 
provisions  of  sections  eight  hundred  and  sixty-three,  eight 
hundred  and  sixty-four,  and  eight  hundred  and  sixty-five, 
shall  not  apply  to  any  deposition  to  be  taken  under  the  au- 
thority of  this  section. 

1  U.  S.  Stat.  88;  17  id.  89;  Guppy  v.  Brown,  4  Dall.  410;  Buddicum  v. 
Kirk,  3  Cranch,  293;  Sergeant  v.  Biddle,  4  Wheat.  608;  Evans  r.  Hettich, 
7  Wheat.  453  ;  Gilpins  v.  Consequa,  Pet.  C.  C.  85;  Nelson  ».  United  States, 
id.  235;  Willings  v.  Consequa,  id.  301;  Winthrop  v.  Union  Ins.  Co.,  2 
Wash.  C.  C.  7;  Richardson  v.  Golden,  3  Wash.  C.  C.  109;  Bell  v.  Davidson, 
id.  332;  Lonsdale  ».  Brown,  id.  404;  Dodge  v.  Israel,  4  Wash.  C.  C.  323; 
The  Schooner  Ruby,  5  Mason,  451;  Cunningham  v.  Otis,  1  Gall.  166; 
Leroy  v.  Delaware  Ins.  Co.,  2  Wash.  C.  C.  223;  United  States  v.  Price, 
id.  356;  Boudereau  v.  Montgomery,  4  Wash.  C.  C.  186;  Peters  v.  Prevost, 
1  Paine,  04;  Jones  w.  Or.  C.  R.  R.  Co.,  8  Ch.  L.  N.  115. 

Sect.  867.  Depositions  in  Perpetueun,  &c ,  admissible  at  Dis- 
cretion of  the  Court.  —  Any  court  of  the  United  States  may,  in 
its  discretion,  admit  in  evidence  in  any  cause  before  it  any 
deposition  taken  in  perpetuam  rex  memoriam^  which  would  be 
80  admissible  in  a  court  of  the  State  wherein  such  cause  is 
pending,  according  to  the  laws  thereof. 

2  U.  S.  Stat.  682.    Gould  r.  Gould,  3  Story,  516. 

Sect.  868.  Deposition  under  a  Dedimus  Potestatem,  how  taken. 
—  When  a  commission  is  issued  by  any  court  of  the  United 
States  for  taking  the  testimony  of  a  witness  named  therein 
at  any  place  within  any  district  or  Territory,  the  clerk  of  any 
court  of  the  United  States  for  such  district  or  Territory  shall, 


350  ADMIRALTY  LAW. 

on  the  application  of  either  party  to  the  suit,  or  of  his  agent, 
issue  a  subpoena  for  such  witness,  commanding  liim  to  appear 
and  testify  before  the  commissioner  named  in  the  commission, 
at  a  time  and  place  stated  in  the  subpoena ;  and  if  any  wit- 
ness, after  being  duly  served  with  such  subpoena,  refuses  or 
neglects  to  appear,  or,  after  appearing,  refuses  to  testify,  not 
being  privileged  from  giving  testimony,  and  such  refusal  or 
neglect  is  proven  to  the  satisfaction  of  any  judge  of  the  court 
whose  clerk  issues  such  subpoena,  such  judge  may  proceed  to 
enforce  obedience  to  the  process,  or  punish  the  disobedience, 
as  any  court  of  the  United  States  may  proceed  in  case  of  diso- 
bedience to  process  of  subpoena  to  testify  issued  by  such  court. 

4  U.  S.  Stat.  197.  York  Co.  v.  Central  R.  R.,  3  Wall.  113;  Sergeant 
V.  Biddle,  4  Wheat.  508. 

Sect.  869.  Subpcena  Duces  Tecum  under  a  Dedimus  Potesta- 
tem.  —  When  either  party  in  such  suit  applies  to  any  judge  of 
a  United  States  court  in  such  district  or  Territory  for  a  sub- 
poena commanding  a  witness,  therein  to  be  named,  to  appear 
and  testify  before  said  commissioner,  at  the  time  and  place  to 
be  stated  in  the  subpoena,  and  to  bring  with  him  and  produce 
to  such  commissioner  any  paper  or  writing  or  written  instru- 
ment or  book  or  other  document,  supposed  to  be  in  the  pos- 
session or  power  of  such  witness,  and  to  be  described  in  the 
subpoena,  such  judge,  on  being  satisfied  by  the  affidavit  of  the 
person  applying,  or  otherwise,  that  there  is  reason  to  believe 
that  such  paper,  writing,  written  instrument,  book,  or  other 
document  is  in  the  possession  or  power  of  the  witness,  and 
that  the  same,  if  produced,  would  be  competent  and  material 
evidence  for  the  party  applying  therefor,  may  order  the 
clerk  of  said  court  to  issue  such  subpoena  accordingly.  And 
if  the  witness,  after  being  served  with  such  subpoena,  fails  to 
produce  to  the  commissioner,  at  the  time  and  place  stated  in 
the  subpoena,  any  such  paper,  writing,  written  instrument, 
book,  or  other  document,  being  in  his  possession  or  power, 
and  described  in  the  subpoena,  and  such  failure  is  proved  to 
the  satisfaction  of  said  judge,  he  may  proceed  to  enforce 
obedience  to  said  process  of  subpoena,  or  punish  the  disobedi- 
ence in  like  manner  as  any  court  of  the  United  States  may 


APPENDIX.  351 

proceed  in  case  of  disobedience  to  like  process  issued  by  such 
court.  When  any  such  paper,  writing,  written  instrument, 
book,  or  other  document  is  produced  to  such  commissioner,  he 
shall,  at  the  cost  of  the  party  requiring  the  same,  cause  to  he 
made  a  correct  copy  thereof,  or  of  so  much  thereof  as  shall 
be  required  by  either  of  the  parties. 

4  U.  S.  Stat.  199.     1  Burr's  Trial,  183. 

Sect.  870.  witness  under  a  Dedimus  Potestatem.  —  No  wit- 
ness shall  be  required,  under  the  provisions  of  either  of  the 
two  preceding  sections,  to  attend  at  any  place  out  of  the 
county  where  he  resides,  nor  more  than  forty  miles  from 
the  place  of  his  residence,  to  give  his  deposition  ;  nor  shall 
any  witness  be  deemed  guilty  of  contempt  for  disobeying  any 
subpoena  directed  to  him  by  virtue  of  either  of  the  said  sec- 
tions, unless  his  fees  for  going  to,  returning  from,  and  one 
day's  attendance  at,  the  place  of  examination,  are  paid  or 
tendered  to  him  at  the  time  of  the  service  of  the  subpoena. 

4D.  S.'stat.  197,  199. 

Sect.  875.  Letters  Rogatory  from  United  States  Courts.  — 
When  any  commission  or  letter  rogatory,  issued  to  take  the 
testimony  of  any  witness  in  a  foreign  country,  in  any  suit  in 
which  the  United  States  are  parties  or  have  an  interest,  is 
executed  by  the  court  or  the  commissioner  to  whom  it  is 
directed,  it  shall  be  returned  by  such  court  or  commissioner 
to  the  minister  or  consul  of  the  United  States  nearest  the 
place  where  it  is  executed.  On  receiving  the  same,  the  said 
minister  or  consul  shall  indorse  thereon  a  certificate,  stating 
when  and  where  the  same  was  received,  and  that  the  said 
deposition  is  in  the  same  condition  as  when  he  received  it ;  and 
he  shall  thereupon  transmit  the  said  letter  or  commission,  so 
executed  and  certified,  by  mail,  to  the  clerk  of  the  court  from 
which  the  same  issued,  in  the  manner  in  which  his  official 
dispatches  are  transmitted  to  the  government.  And  the  tes- 
timony of  witnesses  so  taken  and  returned  shall  be  read  as 
evidence  on  the  trial  of  the  suit  in  which  it  was  taken,  with- 
out objection  as  to  the  method  of  returning  the  same.  [See 
sects.  4071,  4074.] 

12  U.  S.  Stat.  770.    Nelson  v.  United  States,  Pet.  C.  C.  235. 


352  ADMIRALTY  LAW. 

Sect.  940.  in  Cases  of  Seizure,  Bailing  of  Property  in  Va- 
cation. —  In  any  cause  of  admiralty  and  maritime  jurisdiction, 
or  other  case  of  seizure,  depending  in  any  court  of  the  United 
States,  any  judge  of  the  said  court,  in  vacation,  shall  have 
the  same  authority  to  order  any  vessel,  or  cargo,  or  other 
property  to  be  delivered  to  the  claimants,  upon  bail  or  bond, 
or  to  be  sold  when  necessary,  as  the  said  court  has  in  term 
time,  and  to  appoint  appraisers,  and  exercise  every  other  in- 
cidental power  necessary  to  the  complete  execution  of  the 
authority  herein  granted ;  and  the  recognizance  of  bail  or 
bond,  under  such  order,  may  be  executed  before  the  clerk 
upon  the  party's  producing  the  certificate  of  the  collector  of 
the  district,  of  the  sufficiency  of  the  security  offered;  and  the 
same  proceedings  shall  be  had  in  case  of  said  order  of  de- 
livery or  of  sale  as  are  had  in  like  cases  when  ordered  in  terra 
time  :  Provided,  That  upon  every  such  application,  either  for 
an  order  of  delivery  or  of  sale,  the  collector  and  the  attorney 
of  the  district  shall  have  reasonable  notice  in  cas^  of  the 
United  States,  and  the  party  or  counsel  iu  all  other  cases. 

4  U.  S.  Stat.  503;  1  id.  695,  696;  1  id.  176;  1  id.  298;  1  id.  317. 

Sect.  941.  Delivery  Bond  in  Admiralty  Proceedings.  — 
When  a  warrant  of  arrest  or  other  process  in  rem  is  issued  in 
any  cause  of  admiralty  jurisdiction,  except  the'cases  of  seizure 
for  forfeiture  under  any  law  of  the  United  States,  the  mar- 
shal shall  stay  the  execution  of  such  process,  or  discharge 
the  property  arrested  if  the  process  has  been  levied,  on  re- 
ceiving from  the  claimant  of  the  property  a  bond  or  stipula- 
tion in  double  the  amount  claimed  by  the  libellant,  with 
sufficient  surety,  to  be  approved  by  the  judge  of  the  court 
where  the  cause  is  pending,  or,  in  his  absence,  by  the  collec- 
tor of  the  port,  conditioned  to  answer  the  decree  of  the  court 
in  such  cause.  Such  bond  or  stipulation  shall  be  returned  to 
the  court,  and  judgment  thereon,  against  both  the  principal 
and  sureties,  may  be  recovered  at  the  time  of  rendering  the 
decree  in  the  original  cause. 

9  U.  S.  Stat.  181;  1  id.  695,  696;  1  id.  176;  1  id.  298;  1  id.  317. 


APPENDIX.  353 


AN  ACT 

TO  FACILITATE  THE  DISPOSITION  OF  CASES  IN  THE  SUPREME 
COURT  OF  THE  UNITED  STATES,  AND  FOR  OTHER  PUR- 
POSES. 

Sect.  1.  Findings  in  Circuit  Courts  in  Admiralty  Cases.  Jury. 
Review.  —  Be  it  enacted  by  the  Senate  and  Home  of  Represen- 
tatives of  the  United  States  of  America  in  Congress  assembled^ 
That  the  Circuit  Courts  of  the  United  States,  in  deciding 
causes  of  admiralty  and  maritime  jurisdiction  on  the  instance 
side  of  the  court,  shall  find  the  facts  and  the  conclusions  of 
law  upon  which  it  renders  its  judgments  or  decrees,  and  shall 
state  the  facts  and  conclusions  of  law  separately.  And  in 
finding  the  facts,  as  before  provided,  said  court  may,  upon 
the  consent  of  the  parties  who  shall  have  appeared  and  put 
any  matter  of  fact  in  issue,  and  subject  to  such  general  rules 
in  the  premises  as  shall  be  made  and  provided  from  time  to 
time,  impanel  a  jury  of  not  less  than  five  and  not  more  than 
twelve  persons,  to  whom  shall  be  submitted  the  issues  of  fact 
in  such  cause,  under  the  direction  of  the  court,  as  in  cases  at 
common  law.  And  the  finding  of  such  jury,  unless  set  aside 
for  lawful  cause,  shall  be  entered  of  record,  and  stand  as  the 
finding  of  the  court,  upon  which  judgment  shall  be  entered 
according  to  law.  The  review  of  the  judgments  and  decrees 
entered  upon  such  findings  by  the  Supreme  Court,  upon  ap- 
peal, shall  be  limited  to  a  determination  of  the  questions  of 
law  arising  upon  the  record,  and  to  such  rulings  of  the  Cir- 
cuit Court,  excepted  to  at  the  time,  as  may  be  presented  by 
a  bill  of  exceptions,  prepared  £is  in  actions  at  law. 

Sect.  3.  Jurisdiction  on  Appeal,  Matter  in  Dispute.  —  That 
whenever,  by  the  laws  now  in  force,  it  is  required  that  the  mat- 
ter in  dispute  shall  exceed  the  sum  or  value  of  two  thousand 
dollars,  exclusive  of  costs,  in  order  that  the  judgments  and 
decrees  of  the  Circuit  Courts  of  the  United  States  may  be  re- 
examined in  the  Supreme  Court,  such  judgments  and  decrees 
hereafter  rendered  shall  not  be  re-examined  in  the  Supreme 

2.3 


354  ADMIRALTY  LAW. 

Court  unless  the  matter  in  dispute  shall  exceed  the  sum  or 
value  of  five  thousand  dollars,  exclusive  of  costs. 

Sect.  4.  That  this  act  shall  take  effect  on  the  first  day  of 
May,  1875. 

Approved  February  16, 1875. 


PRACTICAL     FORMS. 


FOBM  No.  1. 

LIBEL  IN  REM— GENERAL  FORM. 

District  Court  of  the  United  States,  )  j^  Admiralty. 
District  of  > 

To  the  Honorable  Judge  of  the  District  Court  of  the 

United  States  in  and  for  the  District  of 

The  libel  of  A.  B.,  of  the  city  of  (merchant),  against 

the  (ship)  whereof  C.  D.  is  or  lately  was  master,  her 

tackle,  apparel,  and  furniture,  and  against  all  persons  inter- 
vening for  their  interest  in  the  said  vessel  in  a  cause  of  con- 
tract, civil  and  maritime  [or,  a  cause  of  subtraction  of  wages, 
civil  and  maritime  ;  or,  a  cause  of  pilotage,  civil  and  mari- 
time ;  or^  a  cause  of  wharfage,  civil  and  maritime  ;  or,  a 
cause  of  collision,  civil  and  maritime  ;  or,  a  cause  of  damage, 
civil  and  maritime],  alleges  as  follows  :  — 

First.  That  (here  set  forth  the  facts  constituting  the  cause  of 
action  in  distinct  articles.     The  last  article  to  he  as  follows:') 

Sixth.  That  all  and  singular  the  premises  are  true,  and 
within  the  admiralty  and  maritime  jurisdiction  of  the  United 
States  and  of  this  honorable  court. 

Wherefore  the  libellant  prays  that  process  in  due  form  of 
law,  according  to  the  couree  of  this  honorable  court,  in  cases 
of  admiralty  and  maritime  jurisdiction,  may  issue  against  the 
said  [ship],  her  tackle,  apparel,  furniture,  and  that  all  per- 
sons claiming  any  right,  title,  or  interest  in  the  said  ship  may 
be  cited  to  appear  and  to  answer  upon  oath  all  and  singular 
the  matters  aforesaid,  and  that  this  honorable  court  would  be 


356  ADMIRALTY  LAW. 

pleased  to  decree  [according  to  the  case,  as,  for  instance,  the 
payment  of  his  aforesaid  damages,  or,  such  compensation  and 
reward  by  reason  of  the  premises  as  shall  appear  to  be  just 
and  reasonable],  with  costs,  and  that  the  said  vessel  may  be 
condemned  and  sold  to  pay  the  same,  and  that  the  libellant 
may  have  such  other  and  further  relief  in  the  premises  as  in 
law  and  justice  he  may  be  entitled  to  receive.  \^And  if  the 
libellant  sees  fit  to  put  interrogatories,  then  add]  :  And  further, 
that  the  said  C.  D.  or  other  person  or  persons  intervening  for 
his  or  their  interest  may  be  required  to  answer  the  interroga- 
tories hereunto  annexed. 

(Signed  by)  A.  B.,  Libellant. 
Proctor. 

On  the  day  of  18         appeared  personally  A.  B., 

the  above-named  libellant,  and  was  sworn  to  the  truth  of 
the  foregoing  libel.     Before  me, 


Clerk  or  Commissioner. 
[^Interrogatories  referred  to  in  Foregoing  Libel.] 


1st. 

2d.    ,  «&c.,  &c. 

[Schedule  of  Account  referred  to  in  Foregoing  Libel.] 
feet  of  ship  plank,  &c.,  &c. 


Of  which  there  has  been  paid  to  the  libellant  the  sum  of 


Form  No.  2. 

LIBEL  IN  A  SUIT  IN  REM,  FOR  LABOR,  MATERIALS,  OR 
SUPPLIES  FURNISHED  IN  REPAIRING,  FITTING  OUT, 
OR  FURNISHING  A  FOREIGN  MARITIME   VESSEL. 

[Commence  as  in  No.  1.] 
First.  That  the  said  (ship)  was,  at  the  time  when 

the  repairs  {or  supplies)  hereinafter  mentioned  were  made 
(or  furnished),  a  foreign  vessel,  owned  by  some  person  or 
persons  not  residing  in  the  State  of  {insert  the  name  of 

the  State  in  which  the  services  were  rendered,  or  materials  or 


APPENDIX.  357 

necessaries  supplied),  and  who  are  to  the  libellant  unknown 
((>r,  if  the  owner  and  his  residence  are  known,  state  his  name 
and  residence),  and  is  of  the  burthen  of  about  tons. 

Second.  That  on  or  about  the  day  of  18 

the  said  (ship)  then  lying  at  the  port  of  in  the 

State  of  (the  State  in  which  the  services  were  rendered^ 

or  the  materials  or  supplies  furnished),  and  within  the  ad- 
miralty and  maritime  jurisdiction  of  the  United  States,  the 
said  C.  D.,  master  of  the  said  (ship),  represented  to  the  said 
libellant  that  the  said  (ship)  stood  in  need  of  the  repaii-s  (or 
supplies),  hereinafter  mentioned,  in  order  to  render  her  sea- 
worthy and  competent  to  proceed  to  sea  on  her  intended 
voyage,  and  requested  the  libellant  to  make  such  repairs  (or 
furnish  such  supplies)  ;  and  that  the  libellant,  in  pursuance 
of  such  representation  and  request,  on  the  day  and  at  the 
place  last  above  mentioned,  undertook  to  repair,  and  did  re- 
pair (or,  furnish  supplies  for,  and  did  supply)  the  said  (ship), 
by  removing  from  her  hull  several  courses  of  worn  and  de- 
cayed plank,  and  replacing  them  by  new  plank ;  making  and 
hanging  a  new  rudder ;  putting  a  new  fluke  on  her  sheet 
anchor  ;  caulking  her  upper  seams  ;  mending  her  sails  and 
rigging  {^c,  as  the  case  may  he;  or,  by  furnishing,  for  the 
use  of  the  said  ship,  one  new  chain  cable,  one  long-boat,  four 
spars,  one  topsail,  a  large  quantity  of  provisions,  consisting 
of  ship  bread,  vegetables,  pork,  and  other  ship  stores,  (Sec), 
which  repairs  (or  supplies),  and  the  value  thereof,  are  truly 
and  more  particularly  stated  and  described  in  the  schedule  or 
account  hereto  annexed,  and  which  amount  in  the  whole  to 
dollars  and  cents. 

Third.  That  the  said  repairs  (or  supplies)  were  so  made 
(or  furnished)  by  the  libellant,  on  the  credit  of  the  said 
(ship),  as  well  as  of  the  owners  and  the  said  master  there- 
of; and  were  suitable,  proper,  and  necessary  for  the  pur- 
pose of  enabling  the  said  (ship)  to  proceed  to  sea  with 
safety. 

Fourth.    That  the  aforesaid  sum  of  dollars  and 

cents  still  remains  wholly  unpaid  and  due  to  the  libellant  (or, 
if  a  part  has  been  paid,  add,  except  the  sum  of  men- 

tioned in  the  schedule,  or  account  hereunto  annexed),  al- 


358  ADMIRALTY  LAW. 

though  the  libellant  has  often  requested  the  said   C.  D.,  the 
aforesaid  master  of  the  said  ship,  to  pay  the  same. 

Fifth.  That  all  and  singular  the  premises  are  true,  and 
within  the  admiralty  and  maritime  jurisdiction  of  the  United 
States  and  of  this  honorable  court. 

{^Conclude  as  in  No.  1.] 


Form  No.  3. 

LIBEL  IN  REM  AGAINST  A  DOMESTIC  VESSEL  BY  A  SHIP- 
JOINER  FOR  LABOR  AND  MATERIALS,  TO  ENFORCE  A 
STATE  LIEN. 

[  Commence  as  in  No.  1.] 

First.   That  the  said  ship  is  a  domestic  ship,  and  is 

now   owned,   or   was,   at   the   time    hereinafter  mentioned, 
owned  by  some  persons  who  are  resident  in  the  State  of 
who  are  to  the  libellant  unknown,  but  who,  as  he  is  informed 
and  believes,  reside  in  the  city  of 

Second.  That  the  said  ship,  in  the  month  of  last,  be- 

ing in  the  port  of  in  the  district  aforesaid,  the  libellant 

furnished  certain  materials,  and  performed  certain  labor  as  a 
ship-joiner  (the  particulars  of  which  are  mentioned  and  set 
forth  in  the  schedule  hereto  annexed),  towards  the  altering, 
equipping,  and  finishing  the  said  ship,  at  the  request  of  the 
said  master,  and  at  the  prices  in  the  said  schedule  mentioned. 
That  the  charges  in  said  account  are  just  and  reasonable,  and 
that  said  materials  furnished,  and  such  labor  done  upon  the 
said  vessel,  were  necessary  and  proper,  to  the  altering,  equip- 
ping, and  finishing  the  said  ship. 

Third.  That  the  said  labor  was  performed  upon,  the  said 
vessel,  and  that  said  materials  so  furnished  have  gone  into 
said  ship,  and  have  become  part  thereof;  and  that  the  said 
repairs  done,  labor  performed,  and  material  furnished  amount 
to  the   sum   of  dollars   and  cents,  and  that  the 

labor  was  done  and  materials  furnished  upon  the  credit  of 
said  vessel,  as  well  as  of  the  master  and  owners  thereof. 

Fourth.  That  the  amount  due  for  said  labor  performed  upon 
the  said  vessel,  and  for  such  materials  furnished  to  her,  is  by 
the  law  of  the  State  of  a  lieu  upon  the  said  vessel,  her 


APPENDIX.  359 

tackle,  apparel,  and  furniture,  and  that  this  libellant  has 
(here  state  a  compliance  with  the  proceedings  necesBary  to  make 
the  claim  a  lien  under  the  State  law'). 

Fifth.  That  the  said  libellant  has  repeatedly  requested  the 

said  master  to  pay  hira  the  said  sum  of  dollars  and 

cents,  but  that  the  said  master  has  not  paid  the  same, 

and  still  neglects  and  refuses  so  to  do,  and  that  the  said  sum 

now  remains  entirely  due  and  unpaid. 

Sixth.  That  all  and  singular  the  premises  are  true,  and 
within  the  admiralty  and  maritime  jurisdiction  of  the  United 
States  and  of  this  honorable  court. 

{^Conclude  as  in  JNb.  1.] 


FoEM  No.  4. 

LIBEL  IN  SUIT  IN  REM  FOR  PILOTAGE. 

[  Commence  as  in  No.  1.] 
First.  That  on  or  about  the  day  of  18        the 

libellant  was  a  pilot  duly  licensed  and  qualified  according  to 
the  laws  of  the  State  of  and  of  the  statutes  of  the 

United  States  in  such  cases  made  and  provided,  to  pilot  ves- 
sels to  and  from  the  port  of  by  way  of  that  being 
then  on  board  the  pilot  boat  upon  the  high  seas,  and 
on  waters  within  the  admiralty  and  maritime  jurisdiction  of 
the  United  States  and  of  this  honorable  court,  to  wit  (about 
one  mile  southeasterly  from  the  wliite  buoy  on  the  eastern 
edge  of  the  outer  middle,  near  the  bar),  seeing  a  signal  for  a 
"pilot  from  a  ship  approaching  from  the  southeast,  which 
proved  to  be  the  ship  drawing  feet  water,  and 
bound  to  the  port  of  he  immediately  went  on  board  the 
said  ship,  whereof  the  aforesaid  C.  D.  was  then  master,  took 
charge  of  her  helm,  and  piloted  her  safely  to  her  anchorage 
(or  moorings,  or  to  a  wharf,  describing  it)^  in  the  port  of 
aforesaid,  as  directed  by  the  said  master,  (i/*,  owing  to  the 
tempestuous  state  of  the  weather^  the  disabled  condition  of  the 
ship.,  or  other  cause,  the  service  was  attended  with  extraordinary 
danger,  or  required  extraordinary  exertion  or  skill,  justly  en- 
titling the  libellant,  in  his  opinion,  to  extra  compensation,  state 
the  circumstances  in  a  separate  article.') 


360  ADMIRALTY  LAW. 

Second.  That  for  the  services  mentioned  in  the  first  article 
the  libellant  is  entitled  by  law  to  demand  and  receive  of  and 
from  the  said  master  or  owner  of  the  said  ship  the  sum 

of  dollars. 

{If  extraordinary  services  are  set  forth,  as  above  mentioned^ 
add  in  a  separate  article :  That  by  reason  of  the  extraordinary 
peril,  care,  skill,  and  exertions  mentioned  in  the  second  arti- 
cle, the  Ubellant  deserves  to  have  and  receive  of  and  from 
the  said  master  or  owner  the  further  sum  of  dollars.) 

Third.  That  neither  the  said  master  nor  the  said  owner 
has  paid  to  the  libellant  either  of  the  said  sums  of  money  or 
any  part  thereof,  although  often  requested  so  to  do  ;  and  the 
same  remain  wholly  unpaid  and  due. 

Fourth.  That  all  and  singular  the  premises  are  true,  and 
within  the  admiralty  and  maritime  jurisdiction  of  the  United 
States  and  of  this  honorable  court. 

[  Conclude  as  in  No.  1.] 


Form  No.  5. 
LIBEL  m  SUIT  IN  REM  FOR  WHARFAGE. 

[  Commence  as  in  No.  1.] 

First.  That  the  libellant  is,  and  at  the  time  hereinafter 
mentioned  was,  the  owner  of  a  certain  wharf  in  the  harbor  of 
the  said  port  of 

Second.    That   the  (ship)  being  of  the  burthen   of 

tons  or  thereabouts,  was  at  the  time  hereinafter 
mentioned  a  maritime  vessel,  employed  in  the  business  of  navi- 
gation and  commerce  on  waters  within  the  admiralty  juris- 
diction of  the  United  States  and  of  this  court. 

Third.   That  the  said  (ship),  on  or  about  the  day  of 

18  at  the  instance  and  request  of  the  said  CD.,  then 
master  thereof,  was  received  by  the  libellant  as  such  wharf- 
inger and  moored  at  the  said  wharf,  where,  through  the  care 
of  th£  libellant,  his  agents  and  servants,  she  has  lain  in  safety 
to  the  present  time. 

Fourth.  That  the  libellant  is  informed,  and^  verily  believes, 
that  the  said  C.  D.,  master  as  aforesaid,  is  preparing  and  in- 


APPENDIX.  3G1 

tends  very  shortly  to  remove  the  said  (ship)  from  the  said 
wharf,  and  immediately  to  proceed  with  her  to  sea,  without  the 
consent  of  the  libellaut  and  without  paying  wharfage  therefor. 

Fifth.  That,  according  to  the  customary  rate  of  compensa- 
tion paid  for  the  wharfage  of  such  vessels  at  the  port  afore-- 
said,  the  libellant  is  well  entitled,  by  reason  of  the  premises, 
to  demand  and  have  ^or,  that  by  reason  of  the  premises  the 
libellant  reasonably  deserves  to  have),  for  the  wharfage  of 
the  said  (ship),  of  and  from  the  said  C.  D.,  as  aforesaid,  or 
from  the  owner  of  the  said  (ship),  the  sum  of  and  that 

neither  the  said  master  nor  the  owner  has  paid  the  same,  nor 
any  part  thereof,  although  often  .requested,  and  the  same  re- 
mains wholly  unpaid  and  due  to  the  libellant. 

Sixth.  That  all  and  singular  the  premises  are  true,  and 
within  the  admiralty  and  maritime  jurisdiction  of  the  United 
States  and  of  this  honorable  court. 

[^Conclude  as  in  No.  1.] 


Form  No.  6. 

LIBEL  IN  REM  BY  THE  OWNER  OF  A  STEAMER  AGAINST 
A  CANAL-BOAT  FOR  TOWING  HER. 

[Commence  as  in  No.  1.] 

First.  That  the  said  libellants  were,  and  now  are,  the  own- 
ers of  the  American  steamer  and  that  at  the  instance 
and  request  of  one  Captain  C.  D.,  master  and  owner  of  said 
canal-boat,  the  said  steamer  towed  the  said  canal-boat  from 
the  port  of  to  the  port  of  between  the  ninth 
and  eleventh  days  of  November,  18  and,  by  agreement 
with  the  said  Captain  C.  D.,  were  to  receive  for  the  towing 
of  the  said  canal  boat  the  sum  of  twenty  dollars  ;  and  the 
said  libellants  have  demanded  the  said  twenty  dollars,  and 
the  said  captain  has  refused  to  pay  the  same. 

Second.  That  all  and  singular  the  premises  are  true,  and 
within  the  admiralty  and  maritime  jurisdiction  of  the  United 
States  and  of  this  honorable  court. 

[  Conclude  as  in  No.  1.] 


362  ADMIRALTY  LAW. 


Form  No.  7. 

LIBEL  IN  SUIT  IN  REM  FOR  THE  NON-FULFILMENT  OF  A 
CONTRACT  OF  AFFREIGHTMENT  FOR  THE  CONVEY- 
ANCE OF  GOODS  IN  A  GENERAL  SHIP. 

[^Commence  as  in  No.  1.] 

First,   That  on  or  about  the  day  of  18        the 

said  ship  or  vessel  whereof  the  said  C,  D.  was  master, 

being  then  in  the  port  of  and  designed  on  a  voyage 

upon  the  high  seas  and  on  waters  within  the  admiralty  and 
maritime  jurisdiction  of  the  United  States  and  of  this  hon- 
orable court,  to  wit,  from  the  said  port  of  to 
the  libellant  being  the  owner  of  (^here  describe  the  goods 
shipped,  as,  for  example^  five  hundred  barrels  of  wheaten 
flour,)  of  the  value  of  dollars,  made  a  contract  with 
the  said  C.  D.,  as  such  master,  whereby  he  agreed,  in  consid- 
eration of  certain  freight,  to  convey  the  said  (flour)  from  the 
said  port  of  to  aforesaid,  and  there  to  deliver 
the  same  in  good  order  and  condition  to  saving  and 
excepting  only  such  loss  and  damage  as  might  happen  by 
perils  of  the  seas ;  that  the  libellant  on  the  same  day  deliv- 
ered to  the  said  master  the  said  (flour)  in  good  order,  and 
received  from  him  a  bill  of  lading  therefor. 

Second.  That  the  said  ship  shortly  afterwards  departed  on 
her  said  voyage  ;  but  the  said  C.  D.,  master  as  aforesaid,  not 
regarding  his  duty  in  that  respect,  nor  his  promise  and  un- 
dertaking to  convey  and  deliver  the  said  (flour)  as  aforesaid, 
did  not  so  convey  and  deliver  the  same  (although  no  dan- 
ger of  the  seas  prevented  him  from  so  doing)  ;  but,  on  the 
contrary  thereof,  so  negligently  and  carelessly  conducted 
himself  with  respect  to  the  said  (flour),  that  by  and  through 
the  mere  carelessness,  negligence,  and  improper  conduct 
of  the  said  C.  D.  and  his  mariners  and  servants,  the  said 
(flour)  became  and  was  wholly  lost  to  the  libellant  (or  wetted 
and  greatly  damaged,  as  the  ease  may  be'),  by  reason  whereof 
the  libellant  has  sustained  damage  to  the  amount  of 
dollars,  for  which  he  claims  reparation  in  this  suit. 


APPENDIX.  363 

Third.  That  all  and  singular  the  premises  are  true,  and 
within  the  admiralty  and  maritime  jurisdiction  of  the  United 
States  and  of  this  honorable  court. 

[^Conclude  as  in  No.  1.] 


Form  No.  8. 

LIBEL  m  REM  AND  IN  PERSONAM  AGAINST  A  VESSEL 
AND  OWNER,  ON  A  CHARTER-PARTST,  FOR  THE  VIO- 
LATION OF  THE  CHARTER. 

\^Commence  as  in  No.  1.] 
First.   That  the  said  C.  D.  having  on  the  sixth  day  of 
January,  one  thousand  eight  hundred  and  as  master 

and  owner  of  the  said  schooner  of  of  the  burthen 

of  one  hundred  and  twenty-seven  tons,  or  thereabouts,  then 
lying  in  the  harbor  of  chartered  the  said  vessel  unto 

the  libellant  for  a  voyage  from  the  port  of  to  such  land- 

ing or  landings  in  or  waters  emptying  into  the  same,  as 

the  libellant  might  designate  —  there  to  take  on  board  a  full 
cargo  of  live-oak  timber,  and  return  to  the  at  in 

the  port  and  harbor  of  on  the  following  terms,  that  is 

to  say :  First.  The  said  C.  D.  engaged  that  the  said  vessel,  dur- 
ing said  voyage,  should  be  kept  tight,  stanch,  and  well  fitted, 
tackled  and  provided  with  every  requisite,  and  with  men  and 
provisions  necessary  for  such  a  vo)'age.  Second.  That  the 
whole  of  said  vessel,  with  the  exception  of  the  cabin  and 
the  necessary  room  for  the  accommodation  of  the  crew,  and 
the  sails,  cables,  and  provisions,  should  be  at  the  sole  use  and 
disposal  of  the  libellant  during  the  voyage  aforesaid.  Third. 
That  he  would  take  and  receive  on  board  the  said  vessel  dur- 
ing the  aforesaid  voyage  all  such  lawful  goods  and  merchan- 
dise as  the  libellant  or  his  agent  might  think  proper  to  ship 
(excepting  lime,  and  all  other  extra  hazardous  articles),  and 
a  gang  of  men  not  exceeding  twelve  in  number,  and  to  find 
them  in  good  wholesome  provisions,  one  of  whom  was  to 
have  cabin  accommodations,  and  the  others  to  have  steeif^e 
fare  only.  And  the  libellant  agreed  with  the  said  C.  D.  to 
charter  and  hire  the  said  vessel  as  aforesaid  on  the  following 


364  ADMIRALTY  LAW. 

terms,  that  is  to  say :  First.  The  libellant  engaged  to  provide 
and  furnish  to  the  said  vessel  outward,  one  hundred  barrels 
more  or  less  of  heavy  freight,  and  from  eight  to  twelve  pas- 
sengers, who  were  to  be  accommodated  in  the  manner  afore- 
said ;  also  to  furnish  a  full  return  cargo  of  live-oak  timber. 
Second.  To  pay  the  said  C.  D.,  or  his  agent,  for  the  charter 
or  freight  of  said  vessel,  during  the  voyage  aforesaid,  for  each 
passenger  the  sum  of  ten  dollars ;  for  the  outward  freight, 
nothing ;  and  for  the  return  cargo,  the  sum  particularly  men- 
tioned in  the  said  charter-party  ;  and  it  was  further  under- 
stood and  expressly  agreed  in  and  by  the  said  charter-party 
that  the  said  vessel  should  be  ready  to  receive  said  outward 
freight  the  fourtli  day  of   January,  18  and  should   sail 

on  such  voyage  the  seventh  day  of  January,  18  and 
that  said  charter-party  should  commence  the  fourth  day  of 
January,  18  and  that  said  C.  D.  should  have  the  privi- 
lege of  filling  with  freight,  for  his  own  special  benefit,  such 
part  of  said  vessel  as  might  not  be  required  by  the  libellant 
on  her  outward  voyage,  provided  there  should  be  no  deten- 
tion on  that  account ;  and  that  on  the  signing  of  the  said 
charter-party  the  libellant  should  pay  the  passage-money 
aforesaid,  and  should  advance  a  further  sum,  in  all  amount- 
ing to  three  hundred  and  fifty  dollars ;  that  to  the  true  and 
faithful  performance  of  the  said  charter-party  the  said  C.  D. 
and  the  libellant,  each  to  the  other,  bound  themselves  and 
their  heirs,  executors,  administrators,  and  assigns,  and  also 
the  said  vessel,  her  freight,  tackle,  appurtenances,  and  the 
merchandise  to  be  laden  on  board,  in  the  penal  sum  of  one 
thousand  dollars. 

Second.  That  at  and  immediately  after  the  making  of 
the  said  charter-party  the  libellant  provided  and  furnished 
to  the  said  vessel,  for  her  said  outward  voyage,  one  hun- 
dred barrels,  more  or  less,  of  heavy  freight,  the  same  not 
consisting  of  lime  nor  of  other  extra  hazardous  articles,  and 
also  ten  passengers,  to  be  accommodated  in  the  manner 
provided  by  said  charter-party,  and  pay  to  the  said  CD.  for 
each  of  the  said  passengers  the  sum  of  ten  dollars,  the  same 
being  in  advance  for  their  passage-money ,  and  did  also  ad- 
vance to  the  said  C.  D.  the  further  sum  of  two  hundred  and 


APPENDIX.  365 

fifty  dollars  on  account  of  the  said  charter-party,  and  to  be 
deducted  from  the  amount  of  freight-money  on  the  return  of 
the  said  C.  D.  to  New  York,  —  making  in  all  the  sum  of  three 
hundred  and  fifty  dollars,  as  required  by  the  said  charter- 
party. 

Tliird.  That  the  libellant  has  well  and  truly  performed 
and  kept  all  the  covenants  and  undertakings  on  his  part, 
in  the  said  charter-party  to  be  performed  and  kept,  but 
neither  the  said  C.  D.  nor  the  said  vessel  has  well  and  truly 
performed  and  kept  the  covenants  and  undertakings  on  the 
part  of  the  said  C.  D.,  and  of  the  said  vessel,  according  to 
the  said  charter-party  to  be  performed  and  kept. 

Fourth.  That  after  the  libellant  had  provided  and  furnished 
the  said  freight  and  passengers  for  the  outward  voyage  afore- 
said, and  had  paid  and  advanced  the  said  sum  of  money,  as 
hereinbefore  mentioned,  the  said  C.  D.  did  not,  nor  did  said 
vessel,  sail  on  the  said  voyage  on  the  seventh  day  of  Janu- 
ary, 18  nor  with  reasonable.dispatch,  but  without  any  just 
or  reasonable  cause  delayed  and  remained  in  the  port  of 
until  the  day  of  18       to  the  great  injury 

and  risk  of  loss  of  the  libellant. 

Fifth.  That  the  said  C.  D.,  under  pretence  that  a  part  of 
said  vessel  was  not  required  by  the  libellant  on  her  outward 
voyage,  took  on  board,  for  his  own  special  benefit,  a  large 
quantity  of  goods  and  merchandise  other  than  those  provided 
and  furnished  by  the  libellant ;  and  the  whole  of  the  said 
vessel,  with  the  exception  of  the  cabin  and  the  necessary 
room  for  the  accommodation  of  the  crew,  and  of  the  sails, 
cables,  and  provisions,  was  not  at  the  sole  use  and  disposal 
of  the  libellant  during  the  voyage  aforesaid. 

Sixth.  That  said  C.  D.  detained  the  said  vessel  for  the 
purpose  of  taking  on  board  the  said  vessel,  for  his  own  special 
benefit,  on  her  outward  passage  goods  and  merchandise  other 
than  those  provided  and  furnished  by  the  libellant ;  and  by 
80  taking  on  board  of  the  said  vessel,  for  his  own  special  ben- 
efit, goods  and  merchandise  other  than  those  provided  and 
furnished  by  the  libellant,  impeded  her  voyage  and  subjected 
the  vessel  to  the  difficulties  which  afterwards  occurred. 

Seventh.   And  the  libellant  further  alleges  and  propounds. 


366  ADMIRALTY  LAW. 

that  in   the   said    charter-party   mentioned,   otherwise 

called  is   situate  on  the   coast   of  and  the   said 

vessel  ought  to  have  performed  her  voyage  thither  from  the 
port  of  in  a  period  of  time  not  exceeding  thirty  days 

from  her  departure ;  but  the  said  C.  D.  and  the  said  vessel 
left  the  port  of  on  the  day  of  18       and  on 

the  day   of  18      the  said  vessel  put  into  the  port 

of  not  having  performed  one-half  of  her  said  outward 

voyage. 

Eighth.  That  the  course  and  conduct  of  the  said  C.  D.  and 
the  management  of  the  said  vessel  were  such,  that  all  the  pas- 
sengers, furnished  by  the  libellant  as  aforesaid,  either  left  the 
vessel  at  for  good  cause,  or  were  discharged  by  the 

said  C.  D.,  who  made  no  offer  of  carrying  them  forward  on 
the  said  voyage,  whereby  the  libellant  was  deprived  of  all 
the  gains  and  advantages  which  he  should,  and  ought  to, 
and  would  have  obtained  from  the  carriage  of  the  said  pas- 
sengers. 

Ninth.    That  on  the   arrival  of  the   said  vessel  at 
and  between  the  and  days  of  18      the  said 

C.  D.  caused  a  large  part  of  the  goods  and  merchandise  so 
supplied  and  put  on  board  of  said  vessel  by  the  libellant  to 
be  sold,  and  received  the  profits  thereof,  but  has  not  rendered 
any  account  thereof  to  the  libellant,  nor  paid  for  the  same ; 
which  goods  and  merchandise  so  sold  were  of  the  value  to 
the  libellant  of  at  least  dollars. 

Tenth.   That  the  said  C.  D.,  on  or  about  the  day  of 

18  caused  other  parts  of  the  goods  and  merchan- 
dise 80  supplied  and  put  on  board  of  said  vessel  by  the  libel- 
lant to  be  shipped  from  to  of  the  agent  of 
said  C.  D.,  but  directed  said  agent  not  to  deliver  the  same 
to  the  libellant,  except  upon  the  payment  of  freight,  whereby 
the  libellant  is  required  to  pay  a  large  sum  as  freight,  in 
ord  er  to  obtain  possession  of  said  goods. 

Eleventh.   That  on  the   arrival   of  said   vessel  at 
as  aforesaid,  the  said  C.  D.  refused  to  proceed  on  the  said 
voyage,   before  18       and    wholly  broke   up  the   said 

voyage  ;  nor  did  he  offer  to  proceed  on  the  said  voyage 
before  18      and  wholly  broke  up  the  said  voyage ; 


APPENDIX.  3G7 

nor  did  he  offer  to  proceed  before  that  time,  nor  to  carry 
said  passengers  or  freight ;  nor  did  the  libellant  accept  said 
goods  at  that  port ;  nor  did  the  said  C.  D.  earn  any  part  of 
the  freight,  either  for  the  said  passengers  or  the  said  goods 
supplied  by  the  libellant,  nor  become  entitled  to  the  same  ; 
but  became  and  is  liable  to  refund  the  sum  so  paid  him  by 
the  libellant  as  aforesaid,  and  also  became  liable  to  pay  for 
the  said  goods  so  shipped  by  the  libellant,  and  also  the  said 
sum  of  one  thousand  dollars  mentioned  and  stipulated  in  the 
said  charter-party. 

Twelfth.   That  the  said  vessel  having  brought  on  a  cargo 
from  to  and  taken  in  a  cargo  at  for 

arrived  in  the  port  of  on  the  day  of        .    instant, 

and  neither  the  said  C.  D.,  nor  any  one  on  his  behalf,  nor  in 
behalf  of  the  said  vessel,  has  paid  to  the  libellant  any  part  of 
the  said  sum  of  three  hundred  and  fifty  dollars,  nor  the  said 
sum  of  one  thousand  doUare,  or  any  part  thereof,  nor  any 
sum  whatever,  on  account  of  the  said  charter-party,  or  the 
damages  for  the  violation  thereof,  nor  on  account  of  the  sale 
and  conversion  of  the  articles  belonging  to  the  libellant,  nor 
returned  said  articles  to  the  libellant,  nor  in  any  way  af- 
forded him  any  satisfaction  in  the  premises. 

Thirteenth.   That  all  and  singular  the  premises  are  true, 
and  within  the  admiralty  and  maritime  jurisdiction  of  the 
United  States  and  of  this  honorable  court. 
[  Conclude  08  in  No.  1.] 


Form  No.  9. 

LIBEL  IN  REM  FOR  COLLISION. 

[^Commence  as  in  No.  1.] 
First.  That  your  libellants,  before  and  at  the  time  of  the 
collision  hereinafter  in  the  third  article  mentioned,  were  the 
owners  and  proprietors  of  a  certain  steamboat,  called  the 
with  her  steam  engine,  boilers,  machinery,  tackle,  ap- 
parel and  furniture  ;  which  said  steamboat  your  libellants  used 


368  ADMIRALTY  LAW. 

and  employed  in  transporting  passengers  and  freight  between 
the  port  of  and  the  port  of  in  the  State  of 

and  between  which  said  ports  she  was  regularly  run,  daily 
and  every  day,  Sundays  excepted,  for  the  purpose  aforesaid. 

Second.  That  on  the  day  of  in  the  year 

18        the    said    steamboat  with    her    steam    engine, 

boilers,  fixtures,  apparel,  and  furniture  on  board  thereof, 
was  safely  moored  and  lying  at  her  usual  berth  alongside  of 
the   pier   or   dock  at   the   foot  of  street,  in  said  city 

of  where  she  had  a  perfect  right  to  be  ;  and  the  said 

steamboat  being  then,  and  also  at  the  time  when  she  was 
run  into  as  hereinafter  mentioned,  tight,  stanch,  strong,  and 
in  every  respect  well  manned,  tackled,  apparelled,  and  ap- 
pointed, and  having  the  usual  and  necessary  complement  of 
officers  and  men,  and  that  the  master  and  crew  engaged  on 
board  were  on  the  lookout  for  the  protection  and  safety  of 
the  vessel. 

Third,  That  on  the  morning  of  said  day,  and  while  the  said 
steamboat  was  safely  moored  as  aforesaid,  the  said  ship 
whereof  E.  F.  was  master,  on  her  way  from  in  the 

kingdom  of  to  her  destination  at  said  city  of  came 

up  the  between  and  passing  at  the  distance 

of  about  four  or  five  hundred  feet  from  the  docks  of  said 
city  on  said  river,  with  a  strong  wind  from  the  west-south- 
west, and  with  a  flood  tide;  and  then  and  there  with  great 
force  and  violence  ran  into  and  upon  the  said  steamboat,  and 
did  thereby  cause  great  damage  and  injury  to  the  said 
her  guards,  hull,  and  stern,  and  remained  foul  of  and  upon 
the  said  for  some  time,  and  until  she  (the  ship  ) 

swayed  round,  when  she  cleared  and  passed  on. 

Fourth.  That  the  said  ship  before  and  at  the  time  of 

the  said  collision,  on  a  voyage  from  to  was  com- 

ing up  the  without  a  pilot,  and  with  the  design  of  an- 

choring or  mooring  in  said  river ;  that'  she  was  moving  along 
rapidly,  with  the  aid  of  wind  and  tide,  carrying  her  fore 
and  maintop  sails ;  that-  from  the  improper  and  unskilful 
management  of  the  persons  navigating  said  ship,  the  anchors 
were  not  let  go  in  due  time  to  check  her  headway  and  bring 


APPENDIX.  369 

her  round  into  the  title,  nor  were  her  sails  properly  and  in 
season  furled  and  clewed  up  so  as  to  lessen  her  speed,  but,  on 
the  contrary,  the  said  ship  was  so  improperly  and  unskilfully 
managed  and  navigated,  in  the  particulars  above  mentioned, 
that  she  was  driven  upon  and  into  the  said  steamboat  as 
aforesaid. 

Fifth.   That  the  persons  navigating  the  said  ship  let 

one  anchor  go  about  abreast,  or  in  the  neighborhood  of,  the 
slip  or  pier,  which  partially  checked  her  headway,  but, 
notwithstanding,  she  continued  to  drift  up  the  stream  with 
the  tide,  heading  partly  across  it,  and  in  the  direction  of  the 
sliore ;  that  the  second  anchor  not  being  shackled,  or 
otherwise  in  readiness,  as  it  should  have  been,  was  not  cast 
off  into  the  stream  until  the  said  ship  had  drifted  up  to  about 
opposite  street  pier,  and  at  a  distance  of  three  hundred 

feet  or  thereabouts  from  the  said  and  before  a  sufficient 

scope  of  cable  had  run  out  or  the  two  anchors  had  checked 
her  headway,  she  ran  into  and  afoul  of  the  said  the 

stem  of  the  said  ship  striking  with  great  force  and  violence 
against  the  starboard  side  of  said  steamboat,  twenty-five  feet 
from  the  bows,  and  cutting  in  the  deck  beams,  fender  piece, 
and  plank  shears,  besides  twisting  round  and  damaging  her 
stern;  that  at  the  time  of  the  striking,  the  said  ship  was 
heading  round  into  the  stream  and  towards  the  shore, 

and  that  the  collision  aforesaid  was  occasioned  by  the  negli- 
gence, inattention,  and  want  of  proper  care  and  skill  on  the 
part  of  the  said  ship,  her  master  and  crew,  and  not  from  any 
fault,  omission,  or  neglect  on  the  part  of  the  said  her 

master  and  crew. 

Sixth.    That  the  said  ship  had  not  before,  nor  at  the 

time  of  the  collision,  a  proper  lookout  and  watch  to  guard 
against  the  danger  of  a  collision  in  a  crowded  port ;  that  the 
crew  of  said  ship  were  occupied  on  the  forward  part  of  the 
vessel  while  she  was  drifting  up  as  above  mentioned,  after 
having  let  go  the  fii*st  anchor,  in  shackling  or  otherwise  pre- 
paring the  second  anchor  to  be  cast  into  the  stream  ;  that  the 
collision  would  not  have  occurred  if  both  of  said  anchors  had 
been  in  readiness,  or  had  been  suffered  to  run  in  due  season, 
which  would  have  checked  her  headway,  or  if  the  position  of 

24 


370  ADMIRALTY  LAW. 

her  yards  had  been  changed  by  hauling  on  the  port  braces, 
which  would  have  forced  her  off  from  the  docks  towards  the 
middle  of  the  stream ;  and  that  the  master  and  crew  of  the 
fearful,  from  the  course  pursued  by  those  navigating 
the  ship,  that  she  would  run  into  and  upon  their  vessel,  did 
everything  in  their  power,  by  getting  out  additional  fasts  to 
the  wharf  and  heeling  their  vessel  over,  to  diminish  the  ex- 
tent of  the  injury  and  damage  to  be  caused  by  the  blow. 

Seventh.    That  the  said  steamboat  was  so  disabled 

and  injured  by  the  force  and  violence  with  which  she  was 
struck  by  the  said  ship  as   to  render  it  necessary  to 

take  her  to  the  dry  dock  for  repairs  at  a  time  when  her  ser- 
vices on  the  line  in  which  she  was  engaged  were  particu- 
larly valuable  to  her  owners ;  and  that  the  libellants,  in 
consequence  of  the  having  been  run  into  and  foul  of  as 

aforesaid,  have  sustained  damages  for  the  hire  and  expenses 
of  a  steamboat  to  supply  her  place ;  for  repairs  to  the  said 
and  to  her  fixtures,  for  her  loss  of  time,  for  expenses 
of  her  master  and  crew,  and  otherwise,  to  the  amount  of 
dollars ;  which  said  damages  were  occasioned  by  the  negli- 
gence, want  of  skill,  and  improper  conduct  of  the  persons 
navigating   the   said  ship  and  not  by  or  through  any 

fault,  negligence,  or  improper  conduct  on  the  part  of  the  per- 
sons on  board  the  her  master  or  crew. 

Eighth.    That  since  the  said  was  so  run  foul  of  and 

into  as  aforesaid,  these  libellants  have  applied  to  the  firm  of 
W.  &  X.,  the  consignees  of  said  ship,  —  the  owners  of  said 
ship  residing,  as  these  libellants  are  informed  and  believe,  in 
the  town  of  and   State    of  where  said  ship  be- 

longs, —  and  requested  them  to  settle  with  these  libellants 
for  the  damages  sustained  by  them  as  above  mentioned  ;  but 
the  said  consignees  deny  that  there  is  any  liability  on  the 
part  of  said  ship  for  the  said  damages,  or  any  part  thereof. 

Ninth.  That  the  said  ship  is  now  lying  in  the  port  of 

and  within  the  jurisdiction  of  this  court. 

Tenth.  That  all  and  singular  the  premises  are  true,  and 
within  the  admiralty  and  maritime  jurisdiction  of  the  United 
States  and  of  this  honorable  court. 

[  Conclude  as  in  No.  1.] 


APPENDIX.  871 

Form  No.  10. 

LIBEL  IN  A  SUIT  IN  REM  ON  A  BOTTOMRY  BOND  GIVEN 
BY  THE  MASTER  AGAINST  THE  SHIP,  OR  AGAINST  THE 
SHH»  AND  FREIGHT,  OR  AGAINST  THE  SHIP,  FREIGHT, 
AND  CARGO. 

[Commence  as  in  No.  1.] 
First.   That  on   or  about  the  day  of  18 

while  the   said  ship  was  in  the  on   her  voyage 

from  to  aforesaid,  the  said  C.  D.  then  being  mas- 

ter of  the  said  (ship),  she  encountered  a  severe  gale  whereby 
she  sustained  serious  damage  in  her  hull,  sails,  and  rigging, 
and  two  days  thereafter  entered  the  harbor  of  aforesaid 

in  a  disabled  state  ;  that  the  said  C.  D.,  being  under  orders  to 
take  in  a  cargo  at  that  port  without  delay,  and  to  return 
therewith  to  aforesaid,  it   became   and  was   his   duty 

forthwith  to  repair  and  refit  the  said  (ship),  so  as  to  enable 
him  safely  to  undertake  the  execution  of  his  aforesaid  orders  ; 
that  being  in  the  want  of  the  funds  necessary  for  this  pur- 
pose, amounting  to  the  sum  of  dollars,  and  having  no 
other  means  of  procuring  the  same,  he,  the  said  C.  D.,  master 
aforesaid,  borrowed  the  aforesaid  sum  of  the  libellant  on  bot- 
tomry, at  the  rate  of  per  centum  premium  on  the  voy- 
age aforesaid,  designed  from  to  which  said  sura 
was  by  the  libellant  accordingly  advanced  to  the  said  C.  D. 
for  the  purpose  aforesaid. 

Second.  That,  in  consideration  of  the  said  sum  of  money 
80  advanced,  he,  the  aforesaid  C.  D.,  by  a  certain  bond  or 
instrument  of  bottomry,  bearing  date  at  aforesaid,  the 

day  of  18         by   him   duly   executed    in    the 

presence  of  two  credible  witnesses,  who  respectively  sub- 
scribed their  names  thereto  as  witnesses  to  the  due  execu- 
tion thereof,  bound  the  said  (ship),  her  boats,  tackle,  apparel, 
and  furniture  (^and,  if  the  fact  be  so,  also  the  freight  which 
should  become  due  for  the  aforesaid  voyage ;  or  the  freight, 
&c.,  and  also  the  cargo  on  board  the  said  ship),  for  the  pay- 
ment of  the  aforesaid  sum  of  dollars,  together  with  the 
aforesaid  premium  thereon,  amounting  in  the  whole  to  the 


372  ADMIRALTY  LAW. 

sum  of  dollars,  at  or  before  the  expiration  of  five  days 

after  the  safe  arrival  of  said  (ship)  at  her  moorings  in  the 
harbor  of  a  copy  of  which  bond  is  hereunto  annexed. 

Third.  That  the  said  (ship)  having,  by  means  of  the  said 
loan,  been  fitted  for  sea,  proceeded  with  a  cargo  on  board 
(if  the  cargo  is  hypothecated^  it  would  he  proper  here  to 
describe  it  as  thus :   consisting  of  )  to  aforesaid, 

where  she  arrived  in  safety  on  or  about   the  day  of 

18 

Fourth.  That  the  aforesaid  sum  of  dollars  has  not, 

nor  has  any  part  thereof,  been  paid  to  the  libellant,  nor  to 
any  other  person  authorized  to  receive  the  same  in  his  be- 
half, although  the  said  C.  D.  has  often  been  requested  to 
pay  the  same. 

Fifth.  That  all  and  singular  the  premises  are  true,  and 
within  the  admiralty  and  maritime  jurisdiction  of  the  United 
States  and  of  this  honorable  court. 

[Conclude  as  in  No.  1.] 


Form  No.  11. 
LIBEL  FOR  SALVAGE. 

[  Commence  as  in  No.  1.] 

First.   That    on    the  day    of  last    past,    the 

said  C.   D.,   being   on   a  voyage   in   said   ship  from 

in   the  Island  of  to  in  discovered   a 

barque  dismasted  and  apparently  deserted,  whereupon  he 
hauled  up  for  and  boarded  her ;  that  he  found  the  said 
barque,   which   proved   to    be    the    British   barque  of 

with  twelve  feet  of  water  in  her  hold,  totally  dis- 
masted and  entirely  abandoned  by  her  captain  and  crew  ; 
that  he  found  no  papers  on  board  the  said  barque,  but  she 
had  a  full  cargo  of  rum,  sugar,  and  other  West  India  produce 
on  board. 

Second.   That   the   said   C.   D.    thereupon  took   the  said 
barque  in    tow   and    made   for    the   port   of 

where  he  arrived  with  the  said  barque  on  the  twelfth  day  of 


APPEXDIX.  373 

September  instiint,  the  crew  of  the  said  ship  being  almost 
worn  out  with  i'litigue  in  pum[)ing  out  the  8uid  barque  and 
other  work  done  on  board  of  her,  and  they  are  entitled  to 
reasonable  share  of  said  ship  and  cargo  for  the  salvage 
thereof. 

Third.  That  all  and  singular  the  premises  are  true,  and 
within  the  admiralty  and  maritime  jurisdiction  of  the  United 
States  and  of  this  honorable  court. 

[  Conclude  as  in  No.  1.] 


Form  No.  12. 
LIBEL  BY  A  PASSENGER  FOR  A  VIOLATION  OF  CONTRACT. 

[^Commence  as  in  No.  1.] 

Fii-st.  That  the  said  ship  at  the  several  times  herein- 
after stated  has  been  and  is  yet  lying  in  this  port  bound  on 
a  distant  voyage   to  and   the   said  A.  B.   and  C.    D. 

were  and  are  the  sole  owners  of  the  said  ship,  her  tackle, 
apparel,  and  furniture,  and  are  about  to  sail  in  said  ship 
on  such  voyage,  and  the  said  C.  D.  was  and  is  the  master 
of  said  ship,  and  that  the  said  owners  and  master  employed 
Y.  Z.  as  their  agent  to  obtain  passengers  for  the  said  ship  in 
such  voyage,  and  otherwise  to  act  for  them  as  their  agent  in 
respect  to  the  sfiid  ship. 

Second.  That  the  libellant  and  other  persons  having  seen 
that  the  said  ship  was  advertised  to  sail  for  and  being 

desirous  to  go  to  that  place  with  dispatch,  they  either  in 
person  or  through  their  agents  applied  to  the  said  Y.  Z.  for 
information  in  regard  to  the  terms  and  accommodations  of  the 
said  ship,  and  also  as  to  the  time  of  her  sailing  from  this  port, 
whereupon  the  said  Y.  Z.,  so  acting  as  agent  for  the  ship, 
then  and  there  represented  and  stated  to  the  said  libellant,  or 
his  agents,  that  tlie  said  vessel  was  of  the  very  best  class  and 
condition,  and  a  fast  sailer,  and  in  order  that  the  cabin  pas- 
sengers might  have  all  the  comfort  desired  and  plenty  of  space 
for  exercise  and  air,  that  the  said  owners  engaged  not  to  take 
more  than  fifty  cabin  passengers,  and  that  the  passage-money 
by  reason  thereof  would  be  three  hundred  dollars  a  passenger. 


374  ADMIRALTY  LAW. 

instead  of  two  hundred  and  fifty  dollars,  the  usual  charge  for 
such  a  voyage  ;  whereupon  the  name  of  the  libellant  or  his 
agent  was  left  and  taken,  and  a  refusal  or  option  given  to 
him  to  go  in  such  vessel  upon  such  terms.  That  shortly 
thereafter  the  libellant  or  his  agent  again  called,  whereupon 
the  said  Y.  Z.  represented  to  him  that  another  party,  called 
the  "  Morgan  Party,"  had  taken  twenty-six  berths  (meaning, 
had  engaged  passage  for  twenty-six  persons),  and  that  there 
were  other  persons  speaking  for  the  remainder  of  the  berths, 
and  if  the  libellant  and  his  friends  desired  passages,  they 
must  engage  the  same  without  delay. 

Third.  That  the  libellant  or  his  agents,  after  seeing  the 
said  agent,  examined  the  ship,  found  the  said  C,  D.,  the  cap- 
tain and  part-owner,  went  on  board  the  said  vessel  with  him, 
and  thereupon  the  said  captain  and  part-owner  exhibited  to 
the  libellant  or  his  agents  parts  of  the  vessel  between  the 
decks,  where  state-rooms  and  separate  apartments  for  each 
two  passengers  were  about  to  be  hastilj-^  prepared,  the  vessel 
having  a  small  cabin  as  a  freighting  vessel ;  and  thereupon 
the  said  captain  and  part-owner  represented  and  stated  to  the 
libellant  or  his  agents  that  accommodation  would  be  pre- 
pared for  fifty  passengers,  and  that  the  passengers  should  not 
be  crowded  ;  and  he  marked  out  and  represented  to  the  said 
libellant  or  his  agents  where  the  said  state-rooms  were  to  be, 
and  the  size  of  the  same,  and  certain  spaces  which  were  to 
be  left  between  the  same  for  exercise  and  air,  and  represented 
that  such  state-rooms  were  to  consist  of  a  range  of  separate 
apartments  on  each  side  of  the  said  vessel,  each  of  which  was 
to  be  at  least  six  feet  square,  well  lighted  and  ventilated, 
and  between  the  same  an  open  space  or  hall  was  to  be  left 
for  ventilation  and  for  promenade.  That  he  also  marked  and 
showed  the  libellant  or  his  agents  how  and  where  the  bulk- 
head was  to  be  built  separating  the  cabin  from  the  steerage, 
and  that  only  fifty  cabin  passengers  were  to  be  taken,  and 
that  such  passengers  should  have  an  equal  and  impartial 
chance  of  drawing  for  berths,  which  were  also  to  be  made  so 
nearly  equal  in  accommodations  as  to  afford  little,  if  any, 
choice,  and  that  the  said  master  and  owners  would  not  take 
freight  to  the  inconvenience  of  the  passengers,  and  that  the 


APPENDIX.  375 

said  vessel  would  sail  on  or  about  the  fifth  day  of  January, 
18  and  that  in  consequence  of  the  pressure  of  passengers  it 
was  necessary  for  the  libellunt  to  engage  his  passage  without 
delay. 

Fourth.  That  relying  upon  such  representations,  and  other 
like  deceptive  and  unfair  representations,  this  libellant  pro- 
ceeded to  enter  his  name  at  three  hundred  dollars  for  a  pas- 
sage, it  being  thereupon  represented  to  the  libellant  that  he 
must  actually  pay  his  passage-money  to  insure  his  passage, 
that  such  was  the  custom,  and  that  many  others  had  paid; 
the  libellant  or  his  agents,  shortly  afterwards,  and  on  or 
about  the  second  day  of  January  instant,  paid  to  the  said 
owners  or  their  agent  the  sum  of  three  hundred  dollars  as  and 
for  the  passage-money  in  advance  as  a  cabin  passenger. 

Fifth.  That  the  libellant,  being  a  resident  of  in  this 

State,  relying  upon  the  representations  aforesaid,  prepared 
himself  at  much  expense  for  such  contemplated  voyage  ;  and, 
after  being  so  prepared,  was  in  attendance  in  this  city  at  the 
time  appointed  for  the  departure  of  the  said  vessel,  and  has 
been  subjected  to  inconvenience,  expense,  and  risk  of  loss, 
besides  the  loss  of  his  time  by  the  delay  of  the  said  vessel ; 
and  since  his  arrival  at  port  he  has  ascertained,  and  alleges  to 
be  the  fact,  that  the  said  owners  have  broken  their  positive 
agreement  with  the  libellant  in  various  particulars ;  and  that 
the  representations  aforesaid  were  deceptive,  and  calculated 
and  intended  to  induce  the  libellant  and  others  to  pay  or  de- 
posit their  money  as  aforesaid,  at  a  high  price,  and  then  to 
deprive  them  of  the  means  of  redress ;  relying  upon  the 
known  anxiety  of  the  said  libellant  and  othei-s  to  proceed 
without  delay,  to  induce  them  to  overlook  the  many  varia- 
tions from,  and  neglects  of,  the  matter  so  represented  to  the 
libellant.  That  the  said  owners  have  made  and  fitted  up  in 
the  ship  aforesaid,  between  decks  (calling  it  a  cabin),  a  num- 
ber of  berths  and  pretended  state-rooms,  or  separate  divisions, 
greater  than  the  number  so  represented,  and  have  filled  up 
therewith  the  entire  centre  part  of  said  vessel,  which  was  to 
have  been  left  open,  preventing  ventilation,  and  rendering 
them  close,  confined,  and  unhealthy,  and  have  engaged  to 
take  and  transport  iu  and  on  board  of  the  said  vessel  as 


376  ADMIRALTY  LAW. 

cabin  passengers,  seventy-two  persons,  rendering  it  uncom- 
fortable and  unsafe  for  the  libellant  to  proceed  in  such  vessel 
upon  the  said  voyage  ;  and  many  of  said  passengeis,  and  who 
are  represented  to  have  paid,  or  to  have  engaged,  berths  at 
three  hundred  dollars  each,  have  been  in  part  permitted  to 
become  passengers,  paying  or  engaging  to  pay  for  such  pas- 
sages only  two  hundred  and  seventy-five  dollars,  which  cir- 
cumstance of  itself  has  contributed  to  crowd  the  vessel,  and 
is  contrary  to  the  engagement  made  with  the  libellant  or  his 
agent,  and  the  said  vessel  has  also  been  overcrowded  with 
cargo,  and  the  passengers  greatly  inconvenienced  thereby. 

Sixth.  That  the  libellant  or  his  agents,  and  various  others 
of  the  said  passengers,  on  discovery  of  the  matter,  have  de- 
manded a  return  of  the  said  passage-money  paid  by  them 
respectively,  on  failure  to  obtain  a  compliance  with  the  rep- 
resentations and  engfacjements  aforesaid,  but  the  same  has 
been  refused.  That  the  libellant  is  unwilling  to  go  in  said 
vessel  under  such  circumstances,  and  has  sustained  and  will 
sustain  damages,  as  he  believes,  beyond  the  amount  of  said 
passage-money,  to  the  amount  of  one  thousand  dollars. 

Seventh.  That  all  and  singular  the  premises  are  true,  and 
within  the  admiralty  and  maritime  jurisdiction  of  the  United 
States  and  of  this  honorable  court. 

[Conclude  as  in  No.  1.] 


Form  No.  13. 

LIBEL  IN  REM  FOR  NEGLECT  TO  FURNISH    PROVISIONS 
TO  A  PASSENGER. 

[Commence  as  in  No.  1.] 
First.   That  in  the  month  of  in  the  year  one  thou- 

sand eight  hundred  and  the  said  vessel,  whereof   the 

said  C.  D.  was  master,  being  in  the  port  of  destined  on 

a  voyage  from  thence  to  the  port  of  the  said  libellants 

embarked  on  board  of  said  vessel  as  passengers,  and   paid 
their   freight  from  the   said  port  of  to  the  said  port 


APPENDIX.  377 

of  and  the  agreement  under  which  tlie  said  lihellanta 

embarked  as  passengers  on  board  the  said  vessel  was  in  sub- 
stance as  follows:  That  in  consideration  of  the  sum  of  (thirty 
pounds  sterling)  paid,  the  said  libellant  and  his  family  were 
to  be  provided  with  a  steerage  passage  from  to 

in  the  ship  with  not  less  than  ten  cubic  feet  for  luggage 

for  each  adult,  and  that  three  quarts  of  water  per  day,  dur- 
ing said  voyage,  should  be  furnished  to  each  adult ;  and  that 
there  should  be  furnished  to  each  of  said  libellants  to  be  com- 
puted as  adults,  per  week,  during  said  voyage,  seven  pounds 
of  bread,  biscuit,  flour,  oatmeal  or  rice,  or  a  proportionate 
quantity  of  potatoes  (five  pounds  of  potatoes  being  computed 
as  equal  to  one  pound  of  the  other  articles),  one-half  of  the 
quantity  to  be  biscuit,  to  be  issued  not  less  often  than  twice 
a  week,  two  children  under  fourteen  years  of  age,  and  over 
one  year,  being  computed  as  one  adult;  and  the  libellants 
state  that  they  are  all  statute  adults,  excepting  the  libellants 
D.  E.,  E.  G.,  and  T.  G.,  who  are  all  over  one  year  and  under 
fourteen  years  of  age. 

Second.   That  the  said  voyage  commenced  about  the 
day  of  18         and  continued  for  about  days,  when 

the  said  vessel  arrived  at  said  port  of  where  she  now 

is.  That  shortly  after  the  sailing  of  the  said  vessel,  he  the 
said  C.  D.,  by  himself  or  his  agents,  on  the  high  seas,  with- 
held from  and  refused  to  furnish  to  the  said  libellant  and 
his  family  the  said  water  and  said  provisions  so  as  aforesaid 
by  the  wiid  agreement  to  be  furnished,  whereby  the  said 
libellant  and  his  family,  during  the  said  voyage  or  passage  as 
aforesaid,  suffered  great  want,  hunger,  and  thirst,  and  starva- 
tion, to  the  great  injury  of  the  health  and  deprivation  of  the 
comfort  of  the  libellant  and  his  family,  and  the  libellant 
claims  dollars  damages. 

Third.  That  all  and  singular  the  premises  are  true,  and 
within  the  admiralty  and  maritime  jurisdiction  of  the  United 
States  and  of  this  honorable  court. 

[  Conclude  as  in  No.  1.] 


378  ADMIRALTY  LAW. 

FoKM  No.  14. 
LIBEL  IN  A  SUIT  IN  REM  BY  A  MARINER  FOR  WAGES. 

[Commence  as  in  No.  1.] 

First.  That  on  or  about  the  day  of  18         the 

said  ship  or  vessel  whereof  the  said  C.  D.  was  master, 

being  then  in  the  port  of  and  designed  on  a  voyage  upon 

waters  within  the  admiralty  and  maritime  jurisdiction  of  the 
United  States  and  of  this  honorable  court,  to  wit,  from  the 
said  port  of  to  and  back  to  the  said  port  of 

he  the  said  C.  D.  did  ship  and  hire  the  libellant  to  serve  as  a 
mariner  on  board  the  said  ship  for  and  during  the  said  voy- 
age, at  the  rate  or  wages  of  dollars  per  month  ;  and 
accordingly  on  or  about  the  day  of  18  the 
libellant  entered  on  board  and  into  the  service  of  the  said 
ship  in  the  capacity  and  at  the  monthly  wages  aforesaid, 
and  signed  the  usual  shipping  articles  or  mariner's  contract, 
which,  for  greater  certainty,  he  prays  may  be  produced  by 
the  said  C.  D.  to  this  honorable  court. 

Second.  That  the  said  ship  having  taken  in  a  cargo  of 
divers  goods  and  merchandise,  proceeded  on  her  said  voyage 
with  the  libellant  on  board,  and  arrived  at  the  said  port 
of  on  or  about  the  day  of  18         with  the 

said  cargo  on  board,  which  she  delivered  or  otherwise  dis- 
posed of,  and  then  proceeded  on  her  homeward-bound  voy- 
age to  the  said  port  of  where  she  arrived  on  or  about  the 
day  of  18  with  the  libellant  on  board,  and 
was  there  safely  moored  ;  and  the  said  C.  D.  discharged  the 
libellant  from  the  service  of  the  said  ship,  without  paying 
him  the  wages  due  to  him  for  the  said  voyage  (^or,  if  a  part 
has  been  paid,  then  say^  except  the  sum  of  ),  though 
often  requested  to  pay  the  same. 

Third.  That  during  all  the  aforesaid  voyage  the  libellant 
well  and  truly  performed  his  duty  on  board  the  said  ship  in 
the  capacity  aforesaid,  and  was  obedient  to  all  the  lawful 
commands  of  the  said  master  and  other  officers  on  board  the 
said  ship,  and  well  and  truly  deserved  the  wages  of 
dollars  per  month  as  schedulate. 


APPENDIX.  379 

Fourth.  That  all  and  singular  the  premises  are  true,  and 
within  the  admiralty  and  maritime  jurisdiction  of  the  United 
States,  and  of  this  honorable  court. 

[  Conclude  m  in  No.  1.] 

[Schedule  to  which  the  Foregoing  Libel  refers.'] 

Wages  from  the        day  of  18      to  the  day 

of         18  months  and  days  at 

dollars  per  month $ 

Deduct $ 

Note.  —  (If  the  libel  is  filed  without  a  preliminary  summons, 
the  following  allegation  mag  be  inserted,  to  wit:)  That  the  said 
ship  has  left  the  port  of  delivery  where  the  said  voyage 
ended,  without  paying  to  the  libellant  the  balance  of  wages 
due  to  him  as  aforesaid  (^or  this,  if  it  be  true~),  that  the  said 
ship  is  about  to  proceed  to  sea  before  the  end  of  ten  days 
next  after  the  delivery  of  her  cargo  or  balliist. 


Form  No.  15. 

LIBEL  IN  HEM  BY  A  SEAMAN  ON  A  WHALING  CONTRACT 
FOR  HIS  SHARE  OF  THE  VOYAGE. 

[Commence  as  in  No.  1.] 

First.  That  some  time  in  the  month  of  one  thousand 

eight  hundred  and  the   said   ship  then  lying  in 

the  port  of  and  destined  on  a  three  years'  whaling  voy- 

age to  the  northwest  coast,  the  then  master,  C.  D.,  by  him- 
self or  his  agent,  hired  tliis  libellant  as  a  hand  on  board  the 
said  ship  for  the  voyage  aforesaid,  on  the  two  hundred  and 
twenty-fifth  lay  or  share  of  what  should  be  taken,  as  wages  ; 
and  this  libellant  signed  tlie  shipping  articles,  wherein  the 
contract  is  fully  set  forth,  and  which  he  prays  may  be  pro- 
duced by  the  said  master,  as  this  honorable  court  shall  direct. 

Second.  That  the  said  ship  went  to  the  northwest  coast, 
and  cruised  thereaboutij  until  the  month  of  one  thou- 


380  ADMIRAI^TY  LAW. 

sand  eight  hundred  and  when  she  started   for  home, 

and  proceeded  directly  to  the  port  of  where  she  arrived 

on  or  about  the  day  of  18       and  has  since  come 

to  this  port,  where  she  now  is. 

Third.  That  during  the  said  voyage  the  said  ship  took  in  a 
cargo  of  oil  and  bone  of  great  value,  being,  as  the  libellant  is 
informed  and  believes,  four  thousand  and  seven  hundred  bar- 
rels of  right  whale,  between  forty  and  fifty  barrels  of  sperm, 
and  forty-seven  thousand  pounds  of  bone  ;  and  the  libellant 
claims  to  be  entitled  to  demand  and  have  of  and  from  the 
said  ship,  her  master  and  owners,  his  share  or  lay  of  the 
said  cargo,  being  the  two  hundred  and  twenty-fifth  part 
thereof,  worth,  as  this  libellant  verily  believes,  the  sum  of 
dollars  and  upwards,  which  the  master  and  owners  of 
the  said  ship  have  hitherto  refused,  and  still  refuse  to  pay,  to 
the  great  damage  of  the  libellant. 

Fourth.  That  all  and  singular  the  premises  are  true,  and 
within  the  admiralty  and  maritime  jurisdiction  of  the  United 
States  and  of  this  honorable  court. 

IConclude  as  in^No.  1.] 


Form  No.  16. 

LIBEL  IN  REM  BY  A  SEAMAN    TO    RECOVER  EXPENSES 
FOR  SICKNESS  CONTRACTED  IN  SERVICE  OF  THE  SHIP. 

\_Commence  as  in  No.  1.] 
First.  [Here  insert  the  first  article  of  No.  15.] 
Second.  That  as  the  said  ship  was  going  out  of  the  harbor 
at  on  or  about  the  day  of  18       the  libel- 

lant being  engaged  in  the  service  of  said  vessel,  while  doing 
his  duty  and  obeying  the  commands  of  the  master,  fell  from 
the  maintopsail  yard,  and  was  so  severely  injured  that  he  was 
taken  ashore  to  the  hospital,  where  he  remained  confined  to 
his  bed  for  tlie  space  of  twenty-one  months,  or  thereabouts. 

Third.  That  by  reason  of  the  injuries  so  received  in  the 
service  of  the  said  vessel,  as  above  stated,  the  libellant  has 


APPENDIX.  381 

lost  the  use  of  one  of  his  legs,  and  one  of  his  arms  is  ren- 
dered almost  useless,  and  by  reason  thereof  he  has  been  put 
to  great  expense  already  for  medical  advice,  and  before  he 
can  be  restored  must  undergo  an  operation  involving  further 
expense  to  a  large  amount,  and  he  claims  to  be  entitled  to 
demand  and  have  of  the  said  ship  his  reasonable  expenses 
already  incurred,  and  hereafter  to  be  incurred  in  and  about 
his  cure,  and  his  reasonable  support  since  his  said  injury,  and 
till  he  shall  be  cured. 

Fourth.  That  all  and  singular  the  premises  are  true,  and 
within  the  admiralty  and  maritime  jurisdiction  of  the  United 
States  and  of  this  honorable  court. 

[Conclude  as  in  No.  1.] 


Form  No.  17. 

LIBEL  IN  REM  FOR  SHORT  ALLOWANCE  OF  BREAD. 

[Commence  as  in  No.  1.] 
First,    [ffere  insert  the  first  article  in  No.  15.] 
Second.   That  during  the  voyage  from  to  and 

for  about  one  month  and  a  half,  the  libellant  was  on  short 
allowance  of  good  wholesome  ship-bread,  the  bread  which 
was  furnished  to  the  libellant  being  mouldy,  rotten,  and 
wormy,  and  unfit  to  be  eaten  ;  and  that  during  all  the  voy- 
age from  the  port  of  to  and  from  thence  until 
the  return  of  the  vessel  to  this  port,  and  for  the  period  of 
about  six  months  and  a  half,  he  was  on  short  allowance  of 
good  and  wholesome  ship-bread  (the  bread  that  was  furnished 
to  the  libellant  being  of  the  same  description  as  that  furnished 
for  their  use  on  the  passage  to  ),  the  said  master  having 
neglected  to  put  on  board  the  requisite  quantity  of  provisions 
for  the  said  voyage,  according  to  the  act  of  Congress  in  such 
case  made  and  provided. 

Third.  That  during  the  whole  time  that  libellant  was  on 
board  the  said  vessel  he  well  and  faithfully  performed  his 
duty  as  such  seaman  as  aforesaid,  and  was  obedient  to  all 


382  ADMIRALTY  LAW. 

lawful  commands  of  the  said  master  and  the  other  officers  of 
the  vessel,  whereby  and  by  reason  of  being  put  on  such  short 
allowance  as  aforesaid  he  became  entitled  to  demand  from 
the  said  vessel  the  sum  of  dollars. 

Fourth.  That  all  and  singular  the  premises  are  true,  and 
within  the  admiralty  and  maritime  jurisdiction  of  the  United 
States  and' this  honorable  court. 

l_Conclude  as  in  No.  1.] 


FoKM  No.  18. 

LIBEL  IN  A  SUIT  IN  REM,  BY  A  SHIP-OWNER  AGAINST 
THE  CARGO  OR  GOODS  TRANSPORTED,  FOR  THE 
FREIGHT  THEREOF. 

A.  B.,  of  exhibits  this  his  libel  against  (here  describe 

the  goods  proceeded  against,  as,  for  example,  twenty  tons  of 
Liverpool  coal,  or  bar  iron,  or  five  boxes  of  figured  muslins, 
or  silks)  lately  laden  on  board  the  ship  whereof  C.  D. 

now  is  or  lately  was  master  ;  which  said  (coal,  iron,  muslin, 
or  silks,  or  as  the  case  may  Je)  are  now  in  the  hands  of  I.  J. 
(or  in  the  custody  of  the  said  master,  or  of  the  libellant,  as 
the  case  may  he)  at  in  the  district  aforesaid,  and  within 

the  admiralty  and  maritime  jurisdiction  of  this  honorable 
court ;  and  against  all  persons  lawfully  intervening  for  their 
interest  therein  in  a  case  of  contract,  civil  and  maritime  ;  and 
thereupon  the  said  A.  B,  alleges  and  articulately  propounds 
as  follows,  to  wit :  — 

First.   That  on   or   about    the  day  of  18 

the  said  ship  whereof  the  said  C.  D.  was  master,  and 

the  libellant  was  and  still  is  the  owner  (or  charterer),  being 
at  the  port  of  in  the  kingdom  of  and  bound  to 

the  said  master,  at  the  request  of  G.  H.,  of  the  city  of 
merchant,  agreed  to  receive  and  take  on  board  the  said 
ship  the  aforesaid  and  convey  the  same  to  afore- 

said, and  there  deliver  the  same  in  like  good  order  in  which 
the  said  were  received  on  board  to  E.  F.,  merchant 


APPENDIX.  383 

there  residing ;  the  said  E.  F.  paying  the  usual  and  custo- 
mary freight  thereon  (or  if  the  sum  to  be  paid  was  agreed 
upon  at  the  time  of  the  shipment^  he  the  said  E.  F.  paying 
as  and  for  the  freight  thereon  the  sura  of  ),  the  dangere 

of  the  seas  excepted  ;  for  which  said  the  said  master 

gave  to  the  said  G.  H.  a  bill  of  lading. 

Second.   That  afterwards,  to  wit,  on   or  about  the  said 

day  of  18      at  the  port  of  aforesaid,  the 

said  C.  D.,  master  as  aforesaid,  in  pursuance  of  the  said 
a<^reement,  did  receive  and  take  on  board  the  said  ship  the 

aforesaid,  and  immediately  {or  soon)  thereafter  did  set 
sail  and  proceed  to  aforesaid,  where  he  arrived  with 

the  said  in  good  order,  on  board,  on  the  day  of 

18       and  immediately  gave  notice  to  the  said  I.  J.  of 
the  arrival  of  the  said  ship,  and  of  the  aforesaid  so  laden 

on    board    thereof,  and  offered   to  deliver  the  said  to 

the  said  I.  J.  upon  the  payment  of  the  freight  due  thereon 
according  to  the  aforesaid  agreement. 

Third.   That  afterwards,  to  wit,  on  the  day  of 

18  the  said  freight  not  having  in  the  meantime  been  paid 
or  secured  {or,  that  afterwards,  to  wit,  on,  &c.,  the  said  I.  J. 
having  declined,  or  having  refused,  to  pay  the  said  freight  until 
the  said  had  been  landed,  and  an  opportunity  thereby 

afforded  to  inspect  the  same,  for  the  purpose  of  ascertaining 
whether  any  damage  had  been  done  thereto  during  the  voy- 
age), he,  the  said  C.  D.,  master  as  aforesaid,  proceeded  to 
unload  the  said  and  to  the  end  that  the  lien  or  privilege 

of  the  libellant  thereupon  might  not  be  lost,  the  said  master 
deposited  the  same  in  the  hands  of  the  aforesaid  I.  J.,  to  be 
by  him  retained  until  the  aforesaid  freight  should  be  paid  or 
secured,  and  wlio  still  retains  the  same  in  his  custody  (or,  tf 
the  fact  he  «o,  then  my,  and,  to  the  end,  &c.,  the  said  master 
retained,  and  still  retains,  the  same  in  his  custody  ;  or,  to  the 
end,  &c.,  the  libellant  took  the  same  into  his  custody,  and 
still  retains  the  same). 

Fourth.  That  the  usual  and  customary  freight  for  the  con- 
veyance of  {here  specify  goods  on  account  of  which  freight  is 
claimed)  from  to  at  the  time  of  the  making  of  the 

aforesaid  agreement,     (i/*  the  sum  to  be  paid  for  freight  was 


384  ADMIRALTY  LAW. 

specifically  agreed  upon,  this  article  ought  to  he  omitted,  and  the 
stipulated  sum  stated.') 

Fifth.  That  the  said  E,  F.,  the  consignee  as  aforesaid  of 
the  said  hath  not  paid  to  the  libellant  the  said  freight, 

nor  any  part  thereof,  though  often  requested  to  do  so,  but,  on 
the  contrary,  utterly  neglects  and  refuses  to  pay  the  same. 

Sixth.  That  all  and  singular  the  premises  are  true,  and 
within  the  admiralty  and  maritime  jurisdiction  of  the  United 
States  and  of  this  honorable  court. 

[  Conclude  as  in  No.  1.] 


Form  No.  19. 

LIBEL  IN"  A  SUIT  IN  REM,  0"N  A  CHARTER-PARTY,  BY 
THE  OWNER,  AGAINST  THE  CARGO,  FOR  THE  STIP- 
ULATED FREIGHT  OR  HIRE   OF   THE  SHIP. 

[^Commence  as  in  No.  1.] 

First.   That  on  the  day  of  18        at  the 

libellant,  being  the   owner  of  said  ship  by   a   certain 

charter-party  of  affreightment  (a  copy  whereof  is  hereto  an- 
nexed) then  and  there  made  and  concluded  between  him, 
the  libellant,  of  the  one  part,  and  G.  H.,  of  of  the  other 

part,  did  let  to  freight  the  aforesaid  ship,  whereof  the  said 
C.  D.  was  then  master,  with  her  appurtenances,  for  a  voyage 
on  the  high  seas,  and  on  waters  within  the  admiralty  and 
maritime  jurisdiction  of  the  United  States  and  of  this  honor- 
able court,  to  wit,  from  the  port  of  to  and  back 
again  to  the  aforesaid  port  of 

Second.  That  the  libellant,  in  and  by  the  said  charter- 
party,  and  for  the  consideration  thereinafter  mentioned,  cove- 
nanted and  agreed  with  the  said  G.  H.,  that  the  aforesaid 
ship,  in  and  during  the  voyage  aforesaid,  should  be  tight, 
stanch,  and  strong,  and  sufficiently  tackled  and  apparelled 
with  all  things  necessary  for  such  a  voyage  ;  and  that  it 
should  be  lawful  for  the  said  G.  H.,  his  agents  or  factors,  as 
well  at  the  port  of  aforesaid  as  at  aforesaid,  to  load 

and  put  on  board  the  said  ship  loading  of  such  goods  and 


APPENDIX.  385 

mercliandise  as  they  should  think  proper,  contraband  goods 
excepted. 

Third.  That,  in  consideration  of  the  premises  in  the  said 
charter-party  expressed  and  hereinbefore  stated,  the  said 
G.  H.  thereby  agreed  to  pay  to  the  libellant  for  the  freight 
and  hire  of  the  said  ship  and  appurtenances  the  sum  of 
doHars  per  month,  and  so  in  proportion  for  a  less  time,  so 
long  as  the  said  ship  should  be  continued  in  tlie  aforesaid  ser- 
vice, in  days  after  her  return  to  the  said  port  of  (or 
in  days  after  the  said  voyage  shall  be  otherwise  in  an}' 
manner  whatsoever  determined,  and  notice  thereof  given  to 
the  libellant).  And  the  said  G.  H.,  in  and  by  the  said  char- 
ter-party, further  agreed  to  pay  the  charges  of  victualling  and 
manning  the  said  ship,  and  all  port  charges  and  pilotage  dur- 
ing the  aforesaid  voyage,  and  to  deliver  the  said  ship  on  her 
return  to  the  libellant  or  his  order.  All  which  by  the  said 
charter-party,  a  copy  whereof  is  hereunto  annexed,  reference 
being  thereunto  had,  will  fully  appear. 

Fourth.   That   afterwards,   to    wit,   on   the  day   of 

18  the  said  vessel  being  then  and  there  tight, 
stanch,  strong,  and  every  way  properly  fitted  and  manned 
for  the  voyage,  in  the  aforesaid  charter-party  mentioned,  the 
said  C.  D.,  master  as  aforesaid,  did  then  and  there,  at  the  in- 
stance of  the  said  G.  H.,  receive  and  take  on  board  said  ship 
a  full  cargo  of  lawful  goods,  and  immediately  thereafter  set 
sail  and  proceeded  to  aforesaid,  where,  on  his  arrival, 

he  duly  delivered  the  whole  of  the  said  cargo  to  the  agents  or 
consignees  of  the  said  G.  H. 

Fifth.  That  afterw.ards,  to  wit,  on  the  day  of 

18        at  aforesaid,   the  said   C.   D.,   master  as  afore- 

said, at  the  instance  of  the  said  G.  H.  or  his  agent,  took  on 
board  the  said  ship  another  full  cargo  of  lawful  goods  con- 
sisting of  hereinbefore  mentioned,  and  immediately 
thereafter  set  sail  and  proceeded  thence  to  the  aforesaid  port 
of  where  he  arrived  on  the  day  of  18 
and  immediately  gave  notice  of  the  arrival  of  the  said  ship 
and  cargo  to  the  said  G.  H.,  and  then  proceeded  to  unload 
the  said  cargo ;  and  for  the  purpose  of  preserving  cind  main- 
taining the  lien  or  privilege  of  the  libellant  therefor,  the  said 

25 


386  ADMIRALTY  LAW. 

master  deposited  the  same  in  the  hands  of  the  aforesaid  I.  J., 
to  be  by  him  retained  until  the  aforesaid  freight  or  hire 
should  be  paid  or  secured,  and  who  still  retains  the  same  in 
his  custody  (or,  if  the  fact  he  so,  then  say :  for  the  purpose, 
&c.,  the  said  master  retained  and  still  retains  the  custody  of 
the  same  ;  or,  for  the  purpose,  &c.,  the  libellant  took  the  same 
into  his  custody,  and  still  retains  the  same). 

Sixth.  That  the  libellant  has  always,  since  making  the 
aforesaid  charter-party,  well  and  truly  performed  and  kept 
all  and  singular  the  covenants  and  undertakings  by  the  said 
charter-party  required  to  be  performed  and  kept  on  his  part ; 
and  has,  at  all  times  since  the  arrival  of  said  ship  at  the  port 
of  aforesaid,  been  ready,  and   still  is  ready,  to  deliver 

the  said  cargo  or  cause  the  same  to  be  delivered  to  the  said 
G.  H.  on  his  paying  or  securing  the  aforesaid  freight  or  hire 
of  the  said  ship. 

Seventh.  That  the  said  G.  H.  has  not  paid  to  the  libellant 
the  aforesaid  freight  or  hire,  nor  any  part  thereof,  'although 
often  requested  to  do  so,  but,  on  the  contrary,  utterly  neglects 
and  refuses  to  pay  the  same. 

Eighth.  That  all  and  singular  the  premises  are  true,  and 
within  the  admiralty  and  maritime  jurisdiction  of  the  United 
States  and  of  this  honorable  court. 

[  Conclude  as  in  No.  1.] 


Form  No.  20. 

LIBEL   IN  REM  AGAINST   THE  SHIP  AXD  FREIGHT  FOR 
MONEYS  ADVANCED  TO  PAY  REPAIRS. 

{^Commence  as  in  No.  1.] 
First.  That  the  said  ship  of  the  burthen  of 

tons  or  thereabouts,  is  now  owned,  or  was  at  the  time  here- 
inafter mentioned  owned,  by  some  persons  resident  out  of 
the  State  of  who  are  to  the  libellant  unknown,  but  one 

of  whom,  he  is  informed  and  believes,  resides  in  the  State 
of  and  the   others  in  the  State  of  and  that  the 

said  ship  belongs  to  the  port  of  in  the  said  State  of 


APPENDIX.  387 

Second.  That  the  said  ship,  some  time  in  the  early  part 
of  last,  sailed  from  the  said  port  of  bound  to  the 

said  port  of  under  the  command  of  the  said  C.  D.,  as 

master.  And  that  in  the  course  of  the  said  voyage,  and  some 
time  on  or  about  the  day  of  last,  the  said  ship  got 

on  shore  on  the  and  suffered  great  damage.     That  the 

said  ship  was  subsequently  got  off  and  carried  into 
where  it  was  found  that  it  was  necessary  that  she  should  un- 
dergo a  coui-se  of  thorough  and  expensive  repairs,   and  be 
furnished  with  certain  supplies  in  order  to  render  her  sea- 
wortiiy  and  fit  to  go  to  sea. 

Third.  That  the  said  C.  D.,  master  as  aforesaid,  accord- 
ingly went  on  and  repaired  said  ship,  and  purchased  said 
supplies,  and  that  the  expenses  of  such  repairs  and  supplies 
necessarily  amounted  to  about  dollars.     That  the  said 

master  not  having  the  funds  to  pay  for  the  said  repairs  and 
supplies,  applied  to  this  libellant  at  aforesaid,  for  a  loan 

of  part  of  the  amount  necessary  for  that  purpose.  And  this 
libellant  accordingly  advanced  to  the  said  C.  D.,  for  the  use 
of  the  said  ship,  and  on  her  credit  and  that  of  her  said  master 
and  owners,  on  the  day  of  last,  the  sum  of 

dollars,  to  be  repaid  to  this  libellant  on  the  arrival  of  the 
said  ship  at  (to  which  port  she  was  destined  from 

aforesaid),  and  that  the  sum  of  dollars  was  applied  by 

the  said  C.  D.  towards  payment  of  the  said  repairs  and 
supplies. 

Fourth.  That  shortly  after  making  the  said  advance  by 
this  libellant,  the  said  ship  sailed  from  for  the  port  of 

where   she   arrived   some   two   or  three   days   since. 
That  after  her  arrival  at  the  said  port  of  this  libellant 

applied  to  the  said  C.  D.,  master  as  aforesaid,  for  repayment 
of  the  said  amount  so  advanced  by  him  as  aforesaid,  which 
the  said  master  declined,  on  the  ground  that  he  was  utterly 
unable  so  to  do.  And  that  the  said  ship  has  now  been  taken 
possession  of  by  one  of  her  said  owners,  who  refuses  to  recog- 
nize the  said  debt,  or  make  any  provision  therefor,  to  the 
damage  of  this  libellant  in  the  full  sum  of  dollars. 

Fifth.  That  the  said  ship  on  her  voyage  from  to 

brought   a   cargo  on  freight,  the  whole  or  greater   part  of 


388  ADMIRALTY  LAW. 

which   is   now  on  board  of  the  said  ship,  and  the   freight 
whereof  is  still  uncollected. 

Sixth.  That  all  and  singular  the  premises  are  true,  and 
witliin  the  admiralty  and  maritime  jurisdiction  of  the  United 
States  and  of  this  honorable  court. 

[Conclude  as  in  No.  1.] 


Form  No.  21. 

LIBEL  IN  PERSONAM.    GENERAL  FORM. 

District  Court  of  the  United  States,  ?  ^     aju 
_ .     .       -  '  >  /n  Admiralty. 

"     District  of  S 

To  the  Honorable  Judge  of  the  District  Court  of  the 

United  States  in  and  for  the  District  of 

The  libel  of  A.  B.,  of  the  city  of  merchant,  against 

C.  D.,  now  or  lately  master  of  the  (or,  against  L.  M,, 

owner  of  the  whereof  C.  D.  now  is  or  lately  was  mas- 

ter ;  or,  as  the  case  may  he,  in  a  cause  of  contract,  civil  and 
maritime ;  or,  in  a  cause  of  subtraction  of  wages,  civil  and  mari- 
time ;  or,  in  a  cause  of  pilotage,  civil  and  maritime  ;  or,  in  a 
cause  of  wharfage,  civil  and  maritime  ;  or,  in  a  cause  of  colli- 
sion, civil  and  maritime ;  or,  in  a  cause  of  damage,  civil  and 
maritime). 

And  thereupon  the  said  A.  B.  doth  allege  and  articulately 
propound  as  follows,  to  wit :  — 

First.    That  (sei  forth  the  first  statement  of  the  libel,  and 
follow  with  the  others,  in  distinct  articles,  numerically  arranged. 
The  last  to  he  as  follows  :) 

Sixth.  That  all  and  singular  the  premises  are  true,  and 
within  the  admiralty  and  maritime  jurisdiction  of  the  United 
States  and  of  this  honorable  court. 

Wherefore  the  libellant  prays  that  process  of  monition  may 
issue  to  the  marshal  of  the  district  aforesaid,  commanding 
him  to  cite  and  admonish  the  said  C.  D.  (or  L.  M.)  to  ap- 
pear before  this  honorable  court  on  the  day  of 
18  or  on  such  other  day,  to  be  inserted  in  the  said 
monition,  as  the  court  shall  direct,  then  and  there  to  answer 


APPENDIX.  389 

the  libellant  in  the  premises,  according  to  the  course  of  courts 
of  admiralty,  and  the  rules  and  practice  of  ih'is  honorable 
court  in  civil  causes  of  admiralty  and  maritime  jurisdiction  ; 
and  that  this  honorable  court  will  pronounce  for  the  libel- 
lant's  aforesaid  demand  against  the  said  C.  D.  (^or  L.  M.),  and 
decree  the  same  to  be  paid  with  costs,  and  for  such  other 
and  further  relief  and  redress  as  to  right  and  justice  apper- 
tain, and  as  the  court  is  competent  to  give  in  the  premises 
(^and  if  a  prayer  to  such  effect  is  deemed  expedient^  then  add ;) 
and  further,  that  the  said  C.  D.  (or  L.  M.)  may  be  re- 
quired to  answer  the  interrogatories  hereto  subjoined. 

A.  £.,  Libellant. 
,  Proctor. 

On  the  day  of  18      appeared  personally  A.  B., 

the  above-named  libellant,  and  was  sworn  to  the  truth  of  the 
foregoing  libel.     Before  me, 

,  Clerk  (jor  Commissioner^. 

(  Where  a  warrant  of  arrest  is  required  insert :) 
Wherefore  the  libellant  prays  that  a  warrant  in  due  form 
of  law  may  issue  to  the  marshal  of  the  district  aforesaid,  com- 
manding him  to  arrest  the  said  C.  D.  (or  L.  M.),  and  to  have 
him  forthcoming  before  tiiis  honorable  court  on  the 
day  of  18        or  on  such  other  day,  to  be  inserted  in 

the  said  warrant,  as  the  court  shall  direct,  then  and  there  to 
answer  the  libellant  in  the  premises. 

(  Where  a  clause  of  attachment  against  the  goods  and  chattels^ 
credits  and  effects^  of  the  defendant  is  desired,  insert ;)  And 
further  commanding  the  aforesaid  marshal,  if  the  said  C.  D. 
(or  L.  M.)  shall  not  be  found  within  the  district  aforesaid, 
to  attach  the  goods  and  chattels,  and  for  want  thereof  the 
credits  and  effects,  of  the  siiid  C.  D.  (or  L.  M.)  in  the  hands 
of  E.  F.,  of  merchant. 


390  ADMIRALTY  LAW. 


FOEM  No.  22. 

LIBEL    IN  PERSONAM  BY   A    SHIP-CHANDLER    AGAINST 
THE  OWNER  FOR  SUPPLIES. 

[Commence  as  in  No.  21.] 

First.  That  in  the  month  of  one  thousand  eight  hun- 

dred and  said  ship  being  then  owned  by  the  said  E.  F., 

and  lying  in  the  port  of  under  the  command  of  one 

C.  D.,  and  standing  in  need  of  provisions  and  stores 
the  libellant,  at  the  request  of  the  said  master,  furnished  to 
and  for  the  use  of  the  said  ship  the  provisions  and  stores  con- 
tained in  the  schedule  hereto  annexed,  amounting  to  the  sum 
of  dollars,  and  that  the  same  were  furnished  at  the 

prices  in  said  schedule  stated. 

Second.  That  the  said  stores  were  necessary  to  enable  the 
said  ship  to  perform  her  intended  voyage  or  voyages,  and 
were  furnished  on  the  credit  of  the  said  ship,  as  well  as  of 
the  master  and  owner  thereof. 

Third.  That  the  said  owner  •  has  been  requested  to  pay 
the  said  bill,  but  has  hitherto  wholly  neglected  and  refused 
to  pay  the   same,  and   the  sum  of  dollars,  including 

interest,  is  now  justly  due  and  owing  to  the  libellant  for 
the  same. 

Fourth.  That  all  and  singular  the  premises  are  true,  and 
within  the  admiralty  and  maritime  jurisdiction  of  the  United 
States  and  of  this  honorable  court. 

[  Conclude  as  in  No.  21.] 


Form  No.  23. 

LIBEL  IN  PERSONAM  AGAINST  THE  OWNERS  FOR  SUP- 
PLIES ORDERED  BY  THE  MASTER  IN  A  FOREIGN 
PORT. 

[Commence  as  in  No.  21.] 
First.  That  at  various  times  during  the  year  eighteen  hun- 
dred and  the  said  ship  then  under  the  command 
of  C.  D.,  and  owned  by  the  said  E.  F.  and  G.  H.,  was  lying 


APPENDIX.  391 

at  aforesaid,  and  standing  in  need  of  stores,  provisions, 

and  other  necessaries,  to  enable  her  to  perform  her  intended 
voyage  or  voyages,  and  the  libellant,  at  the  request  of  the  said 
master  of  the  said  ship,  did  furnish  to  and  for  the  use  of  the 
said  ship,  provisions,  stores,  and  other  necessaries,  to  enable 
the  said  ship  to  perform  her  intended  voyage  or  voyages,  to  the 
amount  of  dollai*s,  which  said  bill  is  hereunto  annexed, 

signed  and  approved  by  the  said  master ;  and  the  said  pro- 
visions, stores,  and  other  necessaries  were  furnished  on  the 
credit  of  the  said  ship,  and  the  master  and  owners  thereof. 

Second.  That  the  libellant  has  repeatedly  requested  the 
said  master  and  the  said  owners  to  pay  him  the  said  sum  of 
money  so  due  to  the  libellant  for  the  provisions,  stores,  and 
other  necessaries  so  furnished  as  aforesaid,  but  that  the  said 
master  and  owners  have  hitherto  neglected  and  refused  to 
pay  the  same,  and  still  neglect  and  refuse  so  to  do.  And 
that  the  sum  of  dollars,  with  the  interest,  is  still  due 

to  the  libellant  over  and  above  all  payments  and  deductions. 

Third.  That  all  and  singular  the  premises  are  true,  and 
within  the  admiralty  and  maritime  jurisdiction  of  the  United 
States  and  of  this  honorable  court. 

\_Conclude  as  in  No.  21.] 


FoKM  No.  24. 

LIBEL    m    A  SUIT    IN  PERSONAM  BY  A   MARINER  FOR 
WAGES,  AGAINST  THE  MASTER  OR  OWNER. 

[^Commence  as  in  No.  21.] 
First.  That  on  or  about  the  day  of  18      the 

said  ship  or  vessel  whereof  the  said  C.  D.   was  then 

master  (or,  if  the  suit  he  against  the  owner^  then  add :  and 
the  said  E.  F.  was  then  owner),  being  then  in  the  port  of 
and  designed  on  a  voyage  upon  the  high  seas,  and 
on  waters  within  the  admiralty  and  maritime  jurisdiction 
of  the  United  States  and  of  this  honorable  court,  to  wit, 
from  the  said  port  of  to  and  back  to  the  said  port 

of  he,  the  said  C.  D.,  master  as  aforesaid,  did  ship  and 


392  ADMIRALTY  LAW. 

hire  (or,  if  the  suit  he  against  the  owner^  he,  the  said  E.  F., 
owner  as  aforesaid,  did,  by  himself  or  his  agent,  ship  and 
hire)  the  hbellant  to  serve  as  a  mariner  on  board  the  said 
ship  for  and  during  the  said  voyage,  at  the  rate  or  wages  of 
dollars  per  month  ;  and  accordingly,  on  or  about  the 
day  of  18        the  libellant  entered  on  board  and 

into  the  service  of  the  said  ship  in  the  capacity  and  at  the 
monthly  wages  aforesaid,  and  signed  the  usual  shipping  arti- 
cles or  mariner's  contract,  which,  for  greater  certainty,  he 
prays  may  be  produced  by 'the  said  C.  D.  to  this  honorable 
court. 

Second.  That  the  said  ship,  having  taken  in  a  cargo  of 
divers  goods  and  merchandise,  proceeded  on  her  said  voyage 
with  the  libellant  on  board,  and  arrived  at  the  said  port  of 
on   or   about   the  day  of  18        with  the 

said  cargo  on  board,  which  she  delivered,  or  otherwise  dis- 
posed of,  and  then  proceeded  on  her  homeward-bound  voy- 
age to  the  said  port  of  where  she  arrived  on  or  about 
the  day  of  18  with  the  libellant  on  board, 
and  was  there  safely  moored  ;  and  the  said  C.  D.  discharged 
the  said  libellant  from  the  service  of  the  said  ship  without 
paying  him  the  wages  due  to  him  for  the  said  voyage  (or  if 
a  part  has  been  paid,  then  say,  except  the  sum  of  ), 
though  often  applied  to  and  requested  to  pay  the  same. 

Third.  That  during  all  the  aforesaid  voyage  the  libellant 
well  and  truly  performed  his  duty  on  board  the  said ■*  ship  in 
the  capacity  aforesaid,  and  was  obedient  to  all  the  lawful 
commands  of  the  said  master  and  the  other  officers  on  board 
the  said  ship,  and  well  and  truly  deserved  the  wages  of 
dollars  per  month  as  schedulate. 

Fourth.  That  all  and  singular  the  premises  are  true,  and 
within  the  admiralty  and  maritime  jurisdiction  of  the  United 
States  and  of  this  honorable  court. 

[  Conclude  as  in  No.  21.] 


APPENDIX.  393 


Form  No.  25. 

LIBEL  IN  PERSONA  Af  AGAINST  AN  OWNER  FOR  THE  TWO 
MONTHS'  EXTRA  PAY,  PAYABLE  TO  THE  CONSUL  ON 
DISCHARGE. 

[Commence  as  in  No.  21.] 

First.    (^Here  insert  the  first  article  in  No.  14.) 

Second.  That  the  said  ship,  having  taken  on  board  a  cargo, 
proceeded  therewith,  and  with  the  libellant  on  board,  for  the 
port  of  where   she   safely  arrived   and   delivered   her 

cargo,  and  made  freight.  That  having  taken  on  board  an- 
other cargo  of  divers  goods  and  merchandise,  she  proceeded 
therewith,  and  with  the  libellant  on  board,  for  the  port 
of 

That  the  said  ship  leaked  badly  soon  after  leaving  the  said 
port  of  whereupon   the  said   master   put  into 

where  the  said  vessel  was  sold,  and  the  libellant  was  dis- 
charged from  the  said  ship  by  the  said  master,  and  he  pro- 
ceeded thence  to  where  he  entered  as  a  passenger, 
without  wages,  on  board  the  ship  bound  for  where 
he  arrived  on  the  second  day  of            instant. 

Third.  That  the  said  ship  was  an  American  vessel  in 
the  merchant  service,  and  owned  by  a  citizen  or  citizens  of 
the  United  States,  and  that  the  libellant  was  described  in  the 
crew  list  of  said  ship  as  an  American  seaman. 

Fourth.  That  at  the  time  the  libellant  was  discharged  from 
the  said  ship  the  said  master  did  not  pay  into  the  hands  of 
the  libellant.  nor  into  the  hands  of  the  American  consul  at  the 
said  port,  nor  into  the  hands  of  any  other  pei-son  for  the  use 
of  the  libellant,  the  three  months'  extra  pay,  by  the  act  of 
Congress  in  such  case  made  and  provided,  directed  to  be  paid 
to  A  seaman  in  an  American  vessel  on  his  discharge  in  a  for- 
eign port. 

Fifth.  That  the  libellant  is  entitled  to  demand  from  the 
owner  of  the  said  ship  such  two  months'  extra  pay,  to  wit, 
the  sum  of  dollare. 

Sixth.   That  all  and  singular  the  premises  are  true,  and 


394  ADMIRALTY  LAW. 

within  the  admiralty  and  maritime  jurisdiction  of  the  United 
States  and  of  this  honorable  court. 

[^Conclude  as  in  No.  21.] 


Form  No.  26. 

LIBEL  BY  A  SEAMAN,  IN  A  CAUSE  OF  DAMAGE,  AGAINST 
A  MASTER,  FOR  ASSAULT  AND  BEATING,  OR  IMPRIS- 
ONMENT. 

[_Com'mence  as  in  No.  21.] 

Fii"st.    That  on  or  about  the  day  of  18         at 

the  port  of  the  said  ship  whereof  the  said  C.  D. 

was  master,  then  being  at  the  port  of  and  destined  on 

a  voyage  on  waters  within  the  admiralty  and  maritime  juris- 
diction of  the  United  States  and  of  this  honorable  court,  to 
wit,  from  the  said  port  of  to  and  thence  back  to 

the  said  port  of  the  libellant  shipped  to  serve  as  a  mar- 

iner on  board  the  said  ship  during  the  said  voyage ;  that  the 
said  ship  soon  thereafter  proceeded  upon  the  said  voyage, 
with  the  libellant  on  board,  and  in  due  time  completed  the 
same  ;  and  that  during  the  whole  of  the  said  voyage  the  libel- 
lant did  well  and  truly  perform  his  duty  on  board  the  said  ship 
as  such  mariner,  and  was  obedient  to  all  the  lawful  commands 
of  the  said  master  and  other  officers  on  board  the  said  ship. 

Second.  That  during  the  said  voyage,  to  wit,  on  or  about 
the  day   of  the  libellant  having   the  day  before 

been  accidentally  hit  by  the  jib-sheet  block  on  his  right  arm, 
which  became  thereby  so  severely  hurt  and  lamed  as  almost 
wholly  to  deprive  him  of  the  use  thereof,  insomuch  that  he 
could  not  move  his  said  arm  at  all  without  excruciating  pain, 
the  said  C.  D.  well  knowing  that  the  libellant  had  received 
the  aforesaid  injury,  and  had  thereby  become  so  disabled  as 
aforesaid,  ordered  the  libellant  to  go  aloft  and  assist  in  short- 
ening sail  ;  when  the  libellant  respectfully  told  the  said  C.  D. 
that  it  was  impossible  for  him  to  obey  the  said  order ;  where- 
upon the  said  C.  D.  immediately  knocked  the  libellant  down 
by  a  violent  blow,  with  his  clenched  fist,  upon  the  head  of 
the  libellant,  and,  with  great  force  and  violence,  kicked  him 


APPENDIX.  395 

several  times,  and  once  upon  his  arm,  while  he  lay  upon  the 
deck,  whereby  he  was  greatly  hurt  and  bruised. 

Third.  That  he  afterwards,  during  the  said  voyage,  to  wit, 
on  or  about  the  day  of  (^Here  allege  any  other  a«- 

sault  and  beating^  or  any  imprisonment^  which  may  have  been 
inflicted  by  the  defendant  upon  the  libellanty  and  of  which  he 
sees  Jit  to  complain  ;  and  if  more  than  two  injuries  of  this  na- 
ture have  been  so  inflicted^  they  may  also  severally  be  alleged  in 
separate  successive  articles.^ 

Fourth.  That  by  reason  of  the  cruelty  and  unlawful  vio- 
lence to  which  the  libellant  has  been  subjected  by  the  said 
C.  D.,  as  hereinbefore  alleged  and  set  forth,  the  libellant  hath 
suffered  great  pain  and  distress  (^and  if  the  fact  be  so^  then 
add :  and  his  health  was  thereby  greatly  impaired,  or,  was 
and  still  is  thereby  greatly  impaired),  and  he  hath  been  dam- 
nified to  the  amount  of  dollars. 

Fifth.  That  all  and  singular  the  premises  are  true,  and 
within  the  admiralty  and  maritime  jurisdiction  of  the  United 
States  and  of  this  honorable  court. 

[Conclude  as  in  No.  21.] 


FoEM  No.  27. 

LIBEL  IN  PERSONAM  BY  A  FEMALE  PASSENGER  AGAINST 
THE  MASTER  OF  A  VESSEL  FOR  INSULT  AND  IN- 
DECENCY. 

[^Commence  as  in  No.  21.] 

First.   That  on  or  about  the  day  of  one  thou- 

sand eight  hundred  and  this  libellant  being  in  the  port 

of  in  the  and  wishing  to  embark  for  the 

made  application  to  the  said  C.  D.,  then  commanding  the  ship 
then  lying  in  said  port,  for  a  cabin  pas-sage  to  the  port 
of  and  thereupon  engaged  such  passage,  paying  there- 

for the  sum  of  for  a  cabin  passage  for  herself  and  child, 

that  being  the  highest  price  for  the  fii-st  class  of  passengers. 

Second.   That  the  said  C.  D.  told  this  libellant,  at  the  time 
of  engaging  such  passage,  that  he  was  a  married  man,  that 


396  ADMIRALTY  LAW. 

one  of  his  sons  was  to  accompany  him  on  the  voyage,  and 
that  this  libellant  should  receive  from  hira  every  fatherly 
care,  attention,  and  protection,  and  should  be  under  his  espe- 
cial charge. 

Third.    That  the  said  ship  left  said  port  of  on   or 

about  the  day  of  and  on  the  morning  of 

day   of  18       while   this   libellant   was   asleep   in   the 

state-room  allotted  to  her  (there  being- no  key  to  the  door  of 
the  same),  said  captain,  CD.,  entered  said  state-room,  awoke 
this  libellant  out  of  her  sleep,  and  made  indecent  and  insult- 
ing proposals  to  this  libellant,  and  upon  this  libellant  ordering 
said  C.  D.  out  of  her  said  room,  said  C.  D.  threatened  that  if 
this  libellant  revealed  to  the  other  passengers  what  had  passed 
he  would  denounce  her  as  a  whore,  and  used  other  indecent 
and  vulgar  expressions  to  lier.  That  this  libellant  afterwards, 
and  in  the  course  of  about  three  hours  after  such  occurrence, 
requested  said  C.  D.  to  provide  a  key  for  said  state-room  door, 
which  he  refused  to  do. 

Fourth.  That  for  several  daj'^s  in  succession  after  the  last- 
mentioned  occurrence,  said  C.  D.  was  in  the  habit  of  coming 
into  said  libellant's  state-room,  awakening  her  out  of  her 
sleep,  attempting  violence  to  her  person,  and  using  indecent 
and  vulgar  expressions,  and  exposing  his  person  in  a  disgust- 
ing manner ;  that  upon  tliis,  libellant  ordered  said  C.  D.  from 
her  presence  and  room,  and  threatened  to  inform  the  other 
cabin  passengers  of  his  conduct  towards  her.  Said  C.  D. 
shortly  afterwards,  and  in  the  hearing  of  the  other  cabin  pas- 
sengers, ordered  this  libellant  to  remain  in  her  room,  and  not 
leave  the  same,  for  if  the  libellant  attempted  so  to  do  he 
would  send  her  amongst  the  steerage  passengers.  That  this 
libellant  was  closely  confined  to  her  said  state-room  for  the 
space  of  two  weeks,  having  her  meals  sent  to  her  by  said 
C.  D.'s  orders.  That  said  C.  D.  was  also  in  the  habit  of 
falsely  and  maliciously  slandering  this  libellant  to  other  of 
the  said  passengers  on  board  such  ship  during  such  voyage. 

Fifth.  That  this  libellant  was  much  injured  in  health, 
fretted  and  annoyed  in  body  and  mind,  in  consequence  of 
such  confinement  and  conduct  of  said  C.  D.,  and  was  quite 


APPENDIX.  397 

sick  for  some  time  after  her  arrival  in  said  and  is  dam- 

nified in  the  sum  of  dollars. 

Sixth.  That  all  and  singular  the  premises  are  true,  and 
within  the  admiralt}'  and  maritime  jurisdiction  of  the  United 
States  and  of  this  honorable  court. 

^Conclude  aa  in  No.  21.] 


FoBM  No.  28. 

LIBEL  IN  PERSONAM  AGAINST  CONSIGNEE  FOR  FREIGHT 
ON  A  BILL  OF  LADING. 

[^Commence  as  in  No.  21.] 

First.  That  this  libellant  was  at  the  times  hereinafter  men- 
tioned, and  still  is,  the  owner  of  the  ship  and  that  C.  D. 
was  then  the  master  thereof. 

Second.  That  some  time  in  the  month  of  last,  the 

said  ship,  then  lying  in  the  port  of  and  destined  on  a 

voyage  thence  to  the  port  of  E.  F.  shipped  on  board 

the  said  vessel  twenty  hogsheads,  weight  and  contents  un- 
known,  to   be  therein  carried   from  the  said  port  of 
to  the  port  of  and  there  to  be  delivered,  the  dangers  of 

the  seas  only  to  be  excepted,  in  like  good  order  as  they 
were  received,  to  the  defendant,  Y.  Z.,  or  to  his  assigns,  he 
or  they  paying  freight  for  the  same  at  the  rate  of  per 

hogshead,  without  primage  and  average  accustomed.  And, 
accordingly,   the  said  master,  at  the  port  of  on  the 

day  of  one  thousand  eight  hundred  and 

aflBrmed  to  the  usual  bills  of  lading,  and  delivered  the  same 
to  the  shipper  of  said  cargo,  a  copy  of  which  bills  of  lading 
is  hereto  annexed,  marked  "  Schedule  A." 

Third.  That  in  the  same  month  said  E.  F.  also  shipped  on 
board  the  said  ship,  on  deck,  for  the  same  \oyage,  eighty 
hogsheads,  weight  and  contents  unknown,  and  seventy-nine 
casks,  measurement  and  contents  unknown,  to  be  likewise 
delivered  at  the  port  of  to  the  respondent  or  to  his 

assigns,  he  or  they  paying  freight  for  the  same  at  the  rate  of 
for  each  hogshead,  and  for  each  forty  gallons 


398  ADMIRALTY  LAW. 

gross  custom-house  gauge  of  the  casks,  delivered  in 
without  primage  and  average  accustomed.   And  the  said  mas- 
ter, on  the  day  of  signed  the  usual  bills  of  lad- 
ing, and  delivered  the  same  to  the  shipper,  a  copy  of  which 
is  also  hereto  annexed,  marked  "  Schedule  B." 

Fourth.  That  soon  after  the  said  ship,  with  the  said  cargo 
on  board,  set  sail  from  for  and  there  in  due  time 

safely  arrived,  and  the  said  hogsheads  and  casks  were  duly 
delivered  to  the  said  Y.  Z.,  and  were  by  him  accepted  and 
received. 

Fifth.  That  by  reason  of  the  premises,  the  said  Y.  Z.  be- 
came bound  to  pay  to  this  libellant  the  freight  for  the  said 
merchandise,  which  amounted  in  the  whole  to  the  sum  of 
dollars,  as  is  more  particularly  set  forth  in  the  ac- 
count hereto  annexed  marked  "  Schedule  C." 

Sixth.  That  the  said  Y.  Z.,  notwithstanding  he  has  ac- 
cepted and  received  the  said  merchandise,  and  that  in  like 
good  order  and  condition  as  it  was  shipped,  has  refused  to  pay 
the  freight  for  the  same,  although  often  thereto  requested ; 
and  there  is  now  due  to  the  libellant  for  the  freight  on  said 
merchandise  the  sum  of  dollars  with  interest. 

Seventh.  That  all  and  singular  the  premises  are  true,  and 
within  the  admiralty  and  maritime  jurisdiction  of  the  United 
States  and  of  this  honorable  court. 

l^Conclude  as  in  No.  21.] 


Schedule  A. 
[Here  insert  Bill  of  Lading.'] 

Schedule  B. 
[^Rere  insert  Bill  of  Lading.'] 

Marked  SCHEDULE   C. 

Hope  (1-20),  20  hhds ®U  $80.00 

Y.  Z.  (1-80) ,  80  hhds @  f  5  400.00 

Y.  Z,  (1-79),  79  casks  (11,000  galls,  gross  gauge) 

per  40  galls @  $1  275.00 

$755.00 


APPENDIX.  399 


Form  No.  29. 

LIBEL  IN  PERSONA ^f  ON  A    CHARTER-PARTY  AGAINST 
THE  CHARTERER  FOR  CHARTER-MONEY. 

[^Commence  as  in  No.  21.] 

First.  That  some  time  in  the  month  of  one  thousand 

eight  hundred  and  the  said  ship  being  then  in  the  port 

of  the  said  libellant  made  and  concluded  with  the  re- 

spondent a  charter-party  (a  copy  of  which  is  hereto  annexed, 
and  to  which  the  libellant  craves  leave  to  refer),  bearing  date 
the  tenth  day  of  in  the  year  aforesaid,  by  which  tlie 

libellant  for  and  in  consideration  of  the  covenants  and  agree- 
ments thereinafter  mentioned,  to  be  kept  and  performed  by 
the  said  respondent,  did  covenant  and  agree  on  the  freighting 
and  chartering  of  the  said  ship  unto  the  said  respondent  for 
a  voyage  from  the  port  of  to  and  back  to 

on  the  terms  in  the  said  charter-party  mentioned,  that  is  to 
say:  — 

1st.  The  said  libellant  engaged  that  the  said  ship,  in  and 
during  the  said  voyage,  should  be  kept  tight,  stanch,  well- 
fitted,  tackled,  and  provided  with  every  requisite,  and  with 
men  and  provisions  for  such  a  voyage. 

2d.  The  said  libellant  engaged  that  the  whole  of  said  ship 
(with  the  exception  of  the  cabin,  and  the  necessary  room  for 
the  accommodation  of  the  crew  and  the  stowage  of  the  sails, 
cables,  and  provisions)  should  be  at  the  sole  use  and  disposal 
of  the  said  respondent  during  the  voyage  aforesaid,  and  that 
no  goods  or  merchandise  whatever  should  be  laden  on  board 
otherwise  than  for  the  respondent  or  his  agent,  without  his 
consent,  on  pain  of  forfeiture  of  the  amount  of  freight  agreed 
upon. 

3d.  The  libellant  further  engaged  to  take  and  receive  on 
board  the  said  ship  during  the  aforesaid  voyage  all  such  law- 
ful goods  and  merchandise  as  the  said  respondent  or  his 
agent  might  think  proper  to  ship. 

Second.  That  among  other  things  it  was  by  the  said 
charter-party  covenanted  and  agreed  that  the  said  respondent, 


400  ADMIRALTY  LAW. 

for  and  in  consideration  of  the  covenants  and  agreements  to 
be  kept  and  performed  by  the  said  libellant,  chartered  and 
hired  the  said  ship  on  the  terms  following,  therein  mentioned, 
that  is  to  say  :  — 

1st.  The  said  respondent  engaged  to  provide  and  furnish 
to  the  said  ship  the  necessary  cargoes  or  ballast  for  her  lad- 
ing at  the  several  ports  aforesaid. 

2d.  The  said  respondent  further  engaged  to  pay  the  said 
libellant  or  his  agent,  for  the  charter  or  freight  of  the  said 
ship  during  the  voyage  aforesaid,  in  the  manner  therein  fol- 
lowing, that  is  to  say  :  — 

dollars  per  calendar  month  for  each  and  every 
month,  and  pro  rata  for  any  unexpired  month  that  said  vessel 
might  be  employed,  payable  in  current  money  of  the  United 
States,  also  to  pay  all  the  ships  foreign  port  charges,  lighter- 
age, and  pilotage. 

The  master  to  have  what  money  he  might  require  in  for- 
eign ports  for  disbursements,  and  the  balance  payable  on 
discharge  of  the  cargo  in 

Third.  And  the  libellant  further  alleges  and  propounds, 
that  afterwards,  to  wit,  on  the  day  of  in  the  year 

aforesaid,  at  the  said  port  of  the  said  ship  being  then 

and  there  tight,  stanch,  well-fitted,  tackled,  and  provided 
with  every  requisite,  and  with  men  and  provisions  necessary 
for  such  a  voyage  as  in  said  charter-party  mentioned,  the  said 
libellant,  and  C.  D.,  master  of  the  ship  aforesaid,  loaded  and 
received  on  board  of  the  said  ship  a  full  cargo  of  lawful  goods, 
with  which  the  said  master  immediately  set  sail  and  proceeded 
to  the  port  of  aforesaid,  where  being  afterwards,  to  wit, 

on  the  third  day  of  in  the  year  aforesaid,  arrived,  the 

said  master  then  and  there  made  a  delivery  of  such  part  of 
said  cargo  as  was  destined  for  aforesaid,  to  the  agents 

or  consignees  of  the  said  respondent. 

Fourth.    That  the  said  master  afterwards,  to  wit,  on  the 
day  of  in  the  year  aforesaid,  set  sail  and  pro- 

ceeded from  the  said  port  of  to  the  port  of  afore- 

said, where  being  afterwards  arrived,  to  wit,  the  sixteenth 
day  of  in  the  year  aforesaid,  the  said  master  then  and 

there  made  a  delivery  of  such  part  of  said  cargo  as  was  des- 


APPENDIX.  401 

tined  to  aforesaid,  and  also  took,  loaded,  and  received 

on  board  of  said  ship  five  hundred  bags  of  coffee,  to  be  con- 
veyed to 

Fifth.   That  the  said  master,  afterwards,  to  wit,  on  the 
day   of  in  the  year  aforesaid,  set  sail  and  pro- 

ceeded from  the  port  of  aforesaid,  to  the  port  of 

aforesaid,  where  being  afterwards,  to  wit,  on   the  day 

of  in  the  year  aforesaid,  arrived,  tlie  said  master  then 

and  there  made  a  delivery  of  the  articles  and  residue  of  the 
said  outward  cargo,  and  afterwards,  to  wit,  on  the  sixth  day 
of  in  the  year  aforesaid,   at  aforesaid,   took   on 

board  the  said  ship  a  further  cargo  of  lawful  goods,  with 
which  the  said  master  set  sail  and  proceeded  to  the  port  of 

aforesaid,  where  he  afterwards,  to  wit,  on  the 
day  of  one  thousand  eight  hundred  and  arrived, 

and  delivered  said  homeward  cargo  to  the  said  respondent 
or  his  agents  at  said  port. 

Sixth.  That  the  libellant  has  always,  since  the  making  of 
the  said  charter-party,  well  and  truly  performed  and  kept  all 
and  singular  the  covenants  and  undertakings  on  his  part,  ac- 
cording to  the  said  charter-party  to  be  performed  and  kept, 
but  the  said  respondent  has  not  well  and  truly  performed  and 
kept  all  and  singular  the  covenants  and  undertakings  on  his 
part,  according  to  the  said  charter-party,  to  be  performed  and 
kept  as  is  hereinafter  more  particularly  propounded. 

Seventh.  That  on  the  discharge  of  the  said  homeward  cargo 
at  the  port  of  aforesaid,  the  sum  of  dollars  and 

upwards,  for  freight,  foreign  port  charges,  lighterage,  and  pi- 
lotage (after  deducting  dollars  received  by  said  master 
in  foreign  ports  for  disbursements),  became  and  was  due  and 
payable  from  the  said  respondent  to  the  libellant,  according 
to  the  said  charter-party  and  the  agreement  of  the  said  re- 
spondent, as  is  alleged  in  the  second  article  of  this  libel. 

Eighth.  That  the  said  respondent  has  paid  to  the  libellant 
the  sum  of  dollars  on  account  of  the  said  charter  and 

no   more,  and  has  not  paid  a  balance  of  doUai-s  due 

thereon,  from  the  respondent  to  the  libellant,  on  the  discharge 
of  the  said  cargo  at  the  saiil  port  of  although  often  re- 

quested thereto,  and  now  utterly  neglects  and  refuses  so  to 

20 


402  ADMIRALTY  LAW. 

do,  to   the   damage  of  the   said  libellant,   the   full  sum   of 
dollars  and  upwards. 
Ninth.    That  all  and  singular  the  premises  are  true,  and 
within  the  admiralty  and  maritime  jurisdiction  of  the  United 
Sates  and  of  this  honorable  court. 

IConclude  as  in  No,  21.] 


Form  No.  30. 

LIBEL  BY  THE  OWNER  OF  A  VESSEL,  TN  PERSONAM, 
AGAINST  THE  CONSIGNEE  OF  THE  CARGO,  FOR  UN- 
REASONABLY DETAINING  THE  VESSEL. 

l^Commence  as  in  No.  21.] 

First.   That  in  the  month  of  last,  the  said  ship  lying 

at  and  destined  on  a  voyage  to  E.  F.  shipped  on 

board  the  said  ship  one  hundred  and  ninety-four  tons  of  coal, 
or  thereabouts,  to  be  therein  carried  from  to  and 

there  delivered  in  like  good  order  and  condition  (the  dangers 
of  the  sea  only  excepted),  to  Y.  Z.  or  his  assigns,  to  whom 
the  same  belonged,  he  or  they  paying  freight  for  the  same  at 
the  rate  of  ninety  cents  per  ton ;  and  accordingly  the  master 
of  said  ship,  at  on  the  day  of  last,  signed 

the  usual  bills  of  lading,  a  copy  of  which  is  hereto  annexed. 

Second.    That  shortly  after,  the  said  ship  set  sail  for 
bound  to  with  the  said  coal  on  board,  and  there  safely 

arrived  on  or  about  the  day  of  and  on  the  next 

day,  C.  D.,  the  master  of  said  vessel,  caused  a  written  notice 
to  be  served  upon  Y.  Z.,  the  consignee,  and  owner  of  the 
coal,  as  follows  :  — 

18 
Sir,  — You  will  please  to  take  notice,  that  the  ship  under  my 

command,  and  loaded  with  coal  consigned  to  you,  was  ready  to  discharge 
cargo  this  morning,  of  which  fact  you  have  been  duly  notified.  And  you 
will  further  take  notice  that  demurrage  will  be  demanded  for  every  day 
she  is  detained. 

To  Y.  Z.,  Esq.  C.  D. 

Third.  That  the  said  Y.  Z.  accepted  the  said  cargo,  and 
commenced  to  receive  the  said  coal,  but  refused  to  take  it 


APPENDIX.  403 

save  in  very  small  quantities,  and  at  irregular  times,  capri- 
ciously and  vexatiously,  and  when  urged  and  requested  to 
take  the  same  more  expeditiously,  replied  that  he  would  take 
it  when  it  suited  him,  and  no  faster,  and  would  keep  the 
ship  as  long  as  he  wanted  to,  for  the  captain  could  not  help 
himself,  and  in  accordance  with  such  threat  he  detained  the 
said  ship  until  the  day  of  instant,  on  which 

day  fifty  tons  of  coal  were  still  on  board,  and  were  taken 
out  by  him  and  his  agents,  and  the  ship  completely  dis- 
charged. 

Fourth.  That  during  the  whole  time  the  said  ship  was  so 
detained,  she  was  obliged  to  lie  at  the  foot  of  street  in 

the  that  being  the  place  designated  by  the  bill  of  lad- 

ing, in  danger  of  being  frozen  up  and  compelled  to  winter 
here,  and  her  whole  crew  were  detained,  at  the  expense  of 
the  vessel,  and  two  extra  men  and  a  horse  were  kept  con- 
stantly waiting  on  the  dock  during  very  severe  and  cold 
weather,  ready  to  deliver  the  coal  whenever  the  said  Y.  Z. 
should  take  it  away.  And  the  said  Y.  Z.  was  often  notified 
by  the  master  of  the  said  ship,  that  the  said  master  was 
constantly  ready  to  deliver  said  coal,  and  that  the  ex- 
pense and  damage  of  such  detention  would  be  demanded  of 
him. 

Fifth.  That  the  usual  and  sufficient  time  to  discharge  such 
a  Cargo  of  coal  is  four  days,  and  this  libellant  claims  to  be 
entitled  to  have  of  the  said  Y.  Z.  the  damages  sustained  by 
him  by  reason  of  the  unjust  detention  of  said  vessel  beyond 
that  time,  which  he  alleges  amounts  to  the  sum  of 
dollars  and  upwards. 

Sixth.  That  all  and  singular  the  premises  are  true,  and 
within  the  admiralty  and  maritime  jurisdiction  of  the  United 
States  and  of  this  honorable  court. 

[Conclude  as  in  No.  21.] 


404  ADMIRALTY  LAW. 

Form  No.  31. 

LIBEL  BY  A  SHIP'S  HUSBAND  AGAINST  THE  CHARTERERS, 
FOR  DEMURRAGE. 

[  Commence  as  in  No.  21.] 

First.    That  some  time  in  the  month  of  in  the  year 

one   thousand  eight  hundred  and  the  said   ship  then 

being  in  the  port  of  the  said  libellant  made  and  con- 

cluded with  the  respondent  a  charter-party,  a  copy  of  which 
is  hereto  annexed,  bearing  date  the  day  of  afore- 

said, by  which  the  libellant,  for  and  in  consideration  of  the 
covenants  and  agreements  hereinafter  mentioned,  to  be  kept 
and  performed  by  the  said  respondent,  did  covenant  and 
agree  on  the  freighting  and  chartering  of  the  said  bark  unto 
the   said  resjjondent   for  a  voyage   from  to  or 

—  one  only  —  and  from  the  port  of  discharge,  to  pro- 
ceed to  and  load  back  for  for  the  charter-money 
and  on  the  terms  and  conditions  mentioned  in  the  said 
charter-part}-. 

Second.  That,  among  other  things,  it  was  therein  and 
thereby  agreed  between  the  libellant  and  the  respondent, 
that   the  respondent  should   have  lay-days   in 

within  which  to  load  and  dispatch  the  said  ship  from  the 
port  of  And  in  case  the  vessel  should  be  longer  de- 

tained, the  said  respondent  agreed  to  pay  the  said  libellant 
demurrage  at  the  rate  of  dollars  per  day,  for  each  and 

every  day  so  detained,  provided  such  detention  should  hap- 
pen by  default  of  the  said  respondent  or  his  agent.  And  it 
was  further  understood  and  agreed  that  the  cargo  should  be 
received  and  delivered  alongside,  within  reach  of  the  ves- 
sel's tackles.  And  it  was  therein  and  thereby  further  under- 
stood and  agreed  that  the  said  charter,  and  the  said 
days  should  commence  when  the  said  vessel  was  ready  to 
receive  cargo  at  her  place  of  loading,  and  notice  thereof 

given  to  the  said  respondent  or  to  his  agent. 

Third.   That  the  said  ship  having  been  put  in  readiness  to 

perform  the  aforesaid  voyage,  and  ready  to  receive  cargo  at 

the  said  libellant  on  the  day  of  one  thou- 


APPENDIX.  405 

sand  eight  hundred  and  caused  notice  thereof  to  be 

given  to  the  respondent,  pursuant  to  the  terms  of  tlie  said 
charter-party.  And  the  said  respondent  commenced  to  fur- 
nish the  cargo.  But  notwithstanding  such  notice  was  duly- 
given  to  the  respondent,  and  notwithstanding  the  said  ship 
was  from  that  time  at  the  direction  and  disposal  of  the  said 
respondent,  and  notwithstanding  there  was  no  fault  or  re- 
missness on  the  part  of  the  libellant,  the  said  respondent,  by 
his  own  default,  did  not  load  the  said  ship  and  give  her  dis- 
patch from  the  port  of  within  days,  but  delayed 
her,  contrary  to  the  terras  of  the  said  charter-party,  until  the 
day  of  thereafter,  when  she  sailed,  and  the  libel- 
lant became  thereby  entitled  to  demand  from  the  respondent 
demurrage  for  days,  at  the  rate  of  dollars  per 
day,  amounting  to  the  sum  of  dollars  over  and  above 
all  just  deductions. 

Fourth.  That  said  vessel  well  and  faithfully  performed 
said  voyage,  and  the  respondent  paid  the  charter-money 
therein  stipulated  except  said  demurrage.  But  notwith- 
standing the  said  respondent  has  been  frequently  requested 
to  pay  the  said  sura  of  dollars,  the  demurrage  aforesaid, 

he  has  refused  and  still  refuses  so  to  do. 

Fifth.  That  all  and  singular  the  premises  ar^  true,  and 
within  the  admiralty  and  maritime  jurisdiction  of  the  United 
States  and  of  this  honorable  court. 

[Conclude  aa  in  No.  21.] 


Form  No.  32. 

LIBEL  IN  REM  AND  IN  PERSONAM  BY  A  SEAMAN  AGAINST 
A  SHIP,  FREIGHT,  AND  MASTER,  FOR  WAGES  AND 
SHORT  ALLOWANCE   OF  BREAD. 

To  the  Honorable,  &c. 

The  libel  of  A.  B.,  of  said  district,  mariner,  late  seaman 
on  board  the  ship  whereof  one  C.  D.  now  is,  or  lately 

was  master,  against  the  said  ship,  her  tackle,  apparel,  and 


406  ADMIRALTY  LAW. 

furniture,  and  the  freight  due  for  her  cargo,  now  or  lately 
laden  therein  ;  also,  against  all  persons  lawfully  intervening 
for  their  interests  in  said  vessel,  and  against  C.  D.,  master  of 
said  vessel,  in  a  cause  of  wages,  civil  and  maritime,  alleges  as 
follows :  — 

First.  That  some  time  in  the  month  of  one  thousand 

eight  hundred  and  the   ship  whereof  the   said 

C.  D.  was  master,  then  Ij'ing  in  the  port  of  and  bound 

on  a  voyage  from  the  said  port  of  to  one  or  more  ports 

in  ^  and  back  to  the  port   of  discharge  in  the  United 

States ;  the  said  master,  by  himself  or  his  agent,  hired  the 
libellant  to  serve  as  a  seaman  on  board  said  vessel,  for  and 
during  the  voyage,  at  and  after  the  rate  of  wages  of 
dollars  per  month.  That,  for  the  due  performance  of  the 
said  voyage  the  libellant  signed  shipping  articles,  which  are 
now  in  the  possession  or  under  the  control  of  the  master  or 
owners  of  said  vessel,  and  which  the  libellant  prays  may  be 
produced  to  this  honorable  court  for  further  certainty  in  the 
premises,  and  for  the  benefit  of  the  libellant.  That,  in  pursu- 
ance of  the  said  agreement,  the  libellant  entered  into  the  ser- 
vice of  the  said  vessel  as  such  seaman  as  aforesaid,  on  or 
about  the  day  of   the   month   of  in   the   year 

aforesaid. 

Second.  That  the  said  vessel  having  taken  on  board  a 
cargo,  proceeded  therewith,  and  with  the  libellant  on  board, 
for  the  port  of  where  she  safely  arrived  and  delivered 

her  cargo  and  made  freight.  That  the  said  vessel  having 
taken  ballast  on  board,  proceeded  therewith,  and  with  the 
libellant  on  board,  for  the  port   of  where  she  safely 

arrived.  That  having  there  taken  on  board  a  cargo,  she  pro- 
ceeded therewith,  and  with  the  libellant  on  board,  for  the 
port  of  where  she  safely  arrived,  and  where  she  took 

on  board  some  additional  cargo,  and  proceeded  to  the  port  of 
where  she  safely  arrived  on  or  about  the  day 

of  instant,  where  she   now  is,  and  where,  since  the 

arrival  of  the  said  vessel,  the  libellant  has  been  duly  dis- 
charged from  the  service  thereof. 

Third.  That  during  the  voyage   from  to  and 

for  about  one  month  and  a  half,  the  libellant  was  on  a  short 


APPENDIX.  407 

allowance  of  good  and  wholesome  ship-bread,  the  bread 
which  was  furnished  to  the  libellant  being  mouldy,  rotten, 
and  wormy,  and  unfit  to  be  eaten  ;  and  that  during  all  the 
voyage  from  the  port  of  to  and  from  thence  till 

the  return  of  the  vessel  to  this  port,  and  for  the  period  of 
about  six  months  and  a  half,  he  was  on  a  short  allowance  of 
good  and  wholesome  ship- bread  (the  bread  that  was  fur- 
nished to  the  libellant  being  of  the  same  description  as  that 
furnished  for  his  use  on  the  passage  to  ),  the  said  mas- 

ter having  neglected  to  put  on  board  the  requisite  quantity  of 
provisions  for  the  said  voyage,  according  to  the  act  of  Con- 
gress in  such  case  made  and  provided. 

Fourth.  That  during  the  whole  time  the  libellant  was  on 
board  the  said  vessel,  he  well  and  faithfully  performed  his 
duty  as  such  seaman,  as  aforesaid,  and  was  obedient  to  all 
lawful  commands  of  the  said  master  and  the  other  officers  of 
the  vessel,  whereby  and  by  reason  of  being  put  on  such  short 
allowance  as  aforesaid  he  became  entitled  to  demand  from 
the  said  vessel,  for  wages  and  short  allowance,  the  sum  of 
dollars  and  upwards. 

Fifth.  That  all  and  singular  the  premises  are  true,  and 
within  the  admiralty  and  maritime  jurisdiction  of  the  United 
States  and  of  this  honorable  court. 

Wherefore  the  libellant  prays  that  process  in  due  form  of 
law,  according  to  the  course  of  this  honorable  court  in  cases 
of  admiralty  and  maritime  jurisdiction,  may  issue  against  the 
said  ship  her  tackle,  apparel,  and  furniture,  and  her 

freight,  as  aforesaid  ;  and  that  the  said  C.  D.,  master  of  the 
said  vessel,  and  all  persons  having  any  right,  title,  or  interest 
in  said  ship,  her  tackle,  apparel,  and  furniture,  may  be  cited 
to  appear  and  answer  all  the  matters  aforesaid,  and  that  this 
honorable  court  would  be  pleased  to  decree  the  payment  of 
the  wages  and  short  allowance  aforesaid,  with  costs,  and  that 
the  said  vessel  may  be  condemned  and  sold  to  pay  the  same, 
and  that  the  libellant  may  have  such  other  and  further  re- 
lief in  the  premises  as  in  law  and  in  justice  be  may  be  entitled 
to  receive. 


408  ADMIRALTY  LAW. 


Form  No.  33. 

LIBEL  IN  REM  BY  THE  OWNERS    OF    A  VESSEL  TO 
OBTAIN  POSSESSION  OF  HER. 

To  the  Honorable,  &c. 

The  libel  of  A.  B.  and  C.  D.,  of  merchants,  owners 

of  the  ship  or  vessel,  the  her  tackle,  apparel,  and  furni- 

ture, against  all  persons  intervening  for  their  interest  therein, 
in  a  cause  of  possession,  civil  and  maritime,  alleges  as 
follows :  — 

First.  That  they  are  the  true  and  only  owners  of  the  ship 
her  tackle,  apparel,  and  furniture,  and  being  such  own- 
ers on  or  about  the  day  of  18  appointed  one 
C.  D.,  master  of  said  vessel,  to  navigate  and  sail  her  for 
them,  at  the  wages  agreed  upon  between  them,  and  the 
said  C.  D.  continued  to  be  such  master  till  the  day  of 
instant,  when  the  libellants  removed  him  as  master 
and  appointed  another  master  in  his  place. 

Second.  That  when  the  new  master,  so  appointed  by  the 
libellants,  went  on  board  said  vessel,  by  their  orders,  to  enter 
upon  his  duties  as  such  master,  the  said  C.  D.  refused  to  give 
up  the  possession  or  papers  of  said  vessel  to  the  said  master, 
or  to  the  libellants  who  have  demanded  the  same,  to  the 
great  damage  of  the  libellants. 

Third.  That  all  and  singular  the  premises  are  true,  and 
within  the  admiralty  and  maritime  jurisdiction  of  the  United 
States  and  of  this  honorable  court. 

Whereupon  the  libellants  pray  that  process  in  due  form  of 
law,  according  to  the  course  of  this  honorable  court  in  causes 
of  admiralty  and  maritime  jurisdiction,  may  issue  against  the 
said  vessel,  her  tackle,  apparel,  and  furniture,  and  that  the 
said  C.  D.  may  be  personall}'^  cited  to  appear  and  answer  all 
the  matters  aforesaid,  and  that  the  said  vessel,  her  tackle,  ap- 
parel, and  furniture,  may  be  delivered  to  the  libellants,  and 
that  the  said  C.  D.  may  be  condemned  to  pay  to  the  libellants 
their  damages  and  costs  in  the  premises,  and  that  they  may 
have  such  other  and  further  relief  in  the  premises  as  in  law 
and  justice  they  may  be  entitled  to  receive. 


APPENDIX.  409 

Form  No.  84. 

LIBEL  IN  REM  AGAINST  MERCHANDISE  FOR  POSSESSION. 

To  the  Honorable,  &c. 

The  libel  of  A.  B.,  of  merchant,  against  (here  de- 

scribe the  merchandise},  and  against  C.  D.,  master  of  the  ship 
in  a  cause  of  possession,  civil  and  maritime,  alleges  as 
follows :  — 

Fii-st.  That  heretofore,  while  the  said  vessel  was  lying  in 
the  port  of  and  about  to  sail  for  the  port  of  Y.  Z., 

of  aforesaid,  shipped  on  board  said  vessel,  consigned  to 

the  libellant  (^here  describe  the  merchandise),  and  the  said 
master  signed  the  usual  bills  of  lading  for  the  same,  whereby 
he  agreed  to  deliver  the  same  to  the  libellant  in  on  pay- 

ment of  the  freight  for  the  same  at  the  rate  of 

Second.  That  the  said  ship  having  arrived  in  the  said 
port  of  the  libellant  paid  to  the  said  master  his  freight 

on  the  said  merchandise,  and  demanded  the  delivery  thereof, 
but  the  said  master  refused  to  deliver  the  same  to  him  unless 
the  libellant  would  pay  dollars  as  an  average  contribu- 

tion, which  the  libellant  was  not  bound  to  pay,  not  being 
liable  therefor,  and  the  said  master  still  refuses  to  deliver  to 
him  the  said  nine  cases,  and  each  of  them,  which  are  of  the 
value  of  dollars  and  upward,  to  the  great  damage  of 

the  libellant. 

Thii-d.  That  all  and  singular  the  premises  are  true,  and 
within  the  admiralty  and  maritime  jurisdiction  of  the  United 
States  and  of  this  honorable  court. 

Wherefore  the  libellant  prays  that  process  in  due  form  of 
law,  according  to  the  course  of  this  honorable  court  in  causes 
of  admiralty  and  maritime  jurisdiction,  may  issue  against  the 
said  (^here  describe  the  merchandise) ,  and  that  the  said  C.  D. 
may  be  personally  cited  to  appear  and  answer,  on  oath,  all 
the  matters  aforesaid,  and  that  the  said  merchandise  may  be 
delivered  to  the  libellant,  and  that  the  said  C.  D.  may  be 
compelled  to  pay  to  the  libellant,  his  damages  and  costs  in  the 
premises,  and  that  he  may  have  such  other  and  further  relief 
in  the  premises  as  in  law  and  justice  he  may  be  entitled  to 
receive. 


410  ADMIRALTY  LAW. 


Form  No.  35. 

LIBEL  IN  A  SL^T  BY  A  CO-TENANT  OF  A  SHIP,  OWNING 
MORE  THAN  ONE-HALF  THEREOF,  TO  OBTAIN  POS- 
SESSION THEREOF  FROM  HIS  CO-TENANT. 

To  the  Honorable,  &c. 

A.  B.  of  exhibits  this  his  libel  against  the  ship 

(whereof  C.  D,  is  or  lately  was  master),  now  lying  in  the 
port  of  in  said  district,  and  within  the  admiralty  and 

maritime  jurisdiction  of  this  honorable  court,  her  boats,  tackle, 
apparel,  and  furniture,  and  against  E.  F.,  of  and  all 

other  persons  lawfully  intervening  for  their  interest  therein, 
in  a  cause  of  possession,  civil  and  maritime,  and  thereupon 
the  said  A.  B.  doth  allege  and  articulately  propound  as  fol- 
lows, to  wit :  — 

First.  That  the  said  ship  is  a  maritime  vessel  of  the  bur- 
then of  tons  or  thereabouts;  that  the  libellant  is  the 
true  and  lawful  owner  of  three-fifths  parts  of  the  said  ship 
(or,  as  the  case  may  be),  and  the  said  E.  F.  the  owner  of  the 
remaining  two-fifths  parts  thereof. 

Second.  (Here  state  the  facts  and  circumstances  which  obliged 
the  libellant  to  institute  the  suit,  as,)  that  he  is  desirous  of  send- 
ing the  vessel  upon  some  particular  voyage,  but  that  his  co- 
tenant  having  theretofore  undertaken  to  act  as  ship's  husband 
or  managing  owner,  the  vessel  is  consequently  still  in  his 
possession  or  under  his  control,  and  that  he  refuses  to  agree 
to  such  voyage  or  to  allow  the  vessel  to  proceed  thereon  ;  or 
that  he  is  employing  the  vessel  in  a  manner,  or  threatens  to 
send  her  on  some  voyage,  which  the  libellant  disapproves, 
and  that  he  refuses  to  desist  therefrom;  or,  that  the  libellant 
lacks  confidence  in  the  master  and  desires  to  substitute  an- 
other in  his  place,  but  that  the  master,  acting  under  the  orders 
or  with  the  knowledge  and  consent  of  the  minor  owner,  de- 
clares it  to  be  his  intention  to  resist  the  will  of  the  libellant  in 
this  respect,  and  to  continue  in  command  of  the  vessel,  or 
threatens  immediately  to  proceed  to  sea  with  the  vessel ;  or^ 
that  the  vessel  being  a  registered  vessel,  the  libellant  wishes 
to  surrender  the  certificate  of  registry  and  to  have  the  vessel 


APPENDIX.  411 

enrolled  and  licensed  for  the  coasting  trade,  or  fisheries,  or 
vice  versa,  but  tliat  the  minor  owner  (or  master)  has  posses- 
sion of  the  certificate  of  registry  {or  of  enrolment  and 
license)  and  refuses  to  deliver  up  the  same  for  this  purpose, 
and  threatens  immediately  to  send  (or  proceed  witli)  the  ves- 
sel to  sea  (or  as  the  case  may  be'). 

Third,  That  all  and  singular  the  premises  are  true,  and 
within  the  admiralty  and  maritime  jurisdiction  of  the  United 
States  and  of  this  honorable  court. 

Wherefore  the  libellant  prays  that  a  warrant  of  arrest  may 
issue  against  the  said  ship  her  boats,  tackle,  apparel, 

and  furniture ;  and  also  a  process  of  monition,  commanding 
the  marshal  to  cite  and  admonish  the  said  E.  F.,  part-owner 
of  the  said  ship  as  aforesaid,  and  the  said  C.  D.,  master  as 
aforesaid,  and  all  other  persons  in  general,  who  have  or  pre- 
tend to  have  any  right,  title,  or  interest  therein,  to  appear 
and  answer  the  libellant  in  the  premises,  and  especially  show 
cause,  if  any  they  have,  why  the  possession  of  the  said  ship 
should  not  be  delivered  to  the  libellant,  and  if  no  suflScient 
cause  to  the  contrary  be  shown,  that  this  honorable  court  will 
pronounce  accordingly,  and  will  decree  the  possession  of  the 
said  ship  to  be  forthwith  delivered  to  the  libellant,  and  for 
such  other  and  further  relief  and  redress  as  to  right  and  jus- 
tice may  appertain,  and  as  this  court  is  competent  to  give  in 
the  premises. 

—4 

Form  No.  86. 

LIBEL  IN  REM  BY  A  PART-OWNER  FOR  A  SALE  OF  THE 

VESSEL. 

{^Address  and  statement  of  parties  as  in  No.  33 ;  then 
proceed  .•]  in  a  cause  of  licitation  or  partition,  alleges  as  fol- 
lows :  — 

First.   That  he  is  two-fifths  owner  of  the  ship  her 

tackle,  apparel,  furniture,  and  boats ;  that  C.  D.  is  owner  of 
two-fifths  and  E.  F.  is  owner  of  one-fifth,  and  is  also  master 
of  said  vessel,  and  she  is  now  in  the  port  of 

Second.   That  in  consequence  of  diversity  of  opinion  and 


412  ADMIRALTY  LAW. 

interest  in  relation  to  the  employment  of  said  vessel,  which 
is  irreconcilable,  the  said  owners  are  unable  to  agree  upon 
any  voyage  or  business  for  said  vessel.  That  the  libellant 
has  named  a  reasonable  price  for  said  vessel,  at  which  he  is 
willing  to  sell  his  share,  or  buy  the  shares  of  his  co-owners, 
but  they  refuse  either  to  buy  or  sell,  and,  in  consequence  of 
their  impracticability  and  obstinacy,  he  is  unable  to  sell  to 
any  other  person. 

Third.  That  all  and  singular  the  premises  are  true,  and 
within  the  admiralty  and  mai  itime  jurisdiction  of  the  United 
States  and  of  this  honorable  court. 

Wherefore  the  libellant  prays  that  process  in  due  form 
of  law,  according  to  the  course  of  this  honorable  court  in 
all  cases  of  admiralty  and  maritime  jurisdiction,  may  issue 
against  the  said  ship,  her  tackle,  apparel,  furniture,  and  boats, 
and  that  all  persons  claiming  any  right  in  said  vessel,  and 
especially  the  said  C.  D.  and  E.  F.,  part-owners  and  master 
as  aforesaid,  may  be  cited  to  appear  and  answer  the  matters 
aforesaid,  and  that  the  said  vessel,  her  tackle,  apparel,  furni- 
ture, and  boats  may  be  sold  under  the  direction  of  this  honor- 
able court,  and  the  proceeds  thereof  brought  into  court  to  be 
divided  and  distributed  according  to  law,  and  that  the  libel- 
lant may  have  such  other  and  further  relief  in  the  premises 
as  in  law  and  justice  he  may  be  entitled  to  receive. 


Form  No.  37. 

LIBEL  IN  A  SUIT  BY  A  CO-TENANT  OWNING  A  MOIETY  OR 
LESS  THAN  A  MOIETY  OF  A  SHIP,  TO  COMPEL  HIS  CO- 
TENANT  TO  GIVE  SECURITY  FOR  HER  SAFE  RETURN. 

To  the  Honorable,  &c. 

A.  B.  of  exhibits  this  his  libel  against  the  ship 

(whereof  C.  D.  is,  or  lately  was  master),  now  lying  in  the 
port  of  in  the  said  district,  and  within  the  admiralty 

and  maritime  jurisdiction  of  this  honorable  court,  her  boats, 
tackle,  apparel,  and  furniture,  and  also  against  E.  F.,  of 
and  all  other  persons  lawfully  intervening  for  their  interest 


APPENDIX.  413 

therein  in  a  cause  of  possession,  civil  and  maritime.  And 
thereupon  the  said  A.  B.  doth  allege  and  articulately  pro- 
pound as  follows,  to  wit :  — 

First.  That  the  said  ship  is  a  maritime  vessel  of  the  bur- 
then of  tons  or  thereabouts  ;  and  the  libellant  is  the 
true  and  lawful  owner  of  one  equal  moiety  (or  of  two-fifths 
parts,  as  the  case  may  he)  of  the  said  ship  and  the  said 
E.  F.  is  the  owner  of  the  other  moiety  (or  remaining 
parts)  thereof. 

Second.  That  the  aforesaid  E.  F.  being  in  possession  of 
the  said  ship,  and  assuming  and  exercising  the  power  of  em- 
ploying her  according  to  his  own  will  and  pleasure,  declares 
it  to  be  his  intention,  and  is  making  preparations,  to  send  the 
said  ship  on  a  voyage  to  under  the  charge  of  the  said 

C.  D.,  who  has  been  constituted  master  for  the  said  voyage 
by  the  aforesaid  E.  F.  without  consultation  with  the  libel- 
lant. 

Third.  That  the  libellant  disapproves  of  the  said  contem- 
plated voyage,  and  of  the  appointment  of  the  said  C.  D.  as 
such  master,  and  he  has  repeatedly  informed  the  said  E.  F. 
of  his  objections  thereto.  That  the  libellant  is  willing,  and 
has  repeatedly  offered  and  proposed  to  the  said  E.  F.,  to  send 
the  said  ship  at  their  joint  expense  and  risk  on  some  other 
shorter  or  less  hazardous  voyage  (or,  as  the  ease  may  be"),  to 
be  mutually  agreed  upon  between  the  said  E.  F.  and  the 
libellant,  and  under  the  charge  of  some  other  more  compe- 
tent and  trustworthy  master,  to  be  by  them  jointly  appointed 
{or^  if  the  libellant  desires  to  send  the  vessel  on  some  particular 
voyage^  the  fact  should  be  so  stated)  ;  but  that  the  said  E.  F. 
utterly  refuses  to  accede  to  the  wishes  of  the  libellant  in  this 
behalf,  and  persists  in  his  aforesaid  design  against  the  will 
and  expostulations  of  the  libellant. 

Fourth.  That  all  and  singular  the  premises  are  true,  and 
within  the  admiralty  and  maritime  jurisdiction  of  the  United 
States  and  of  this  honorable  court. 

Wherefore  the  libellant  prays  that  a  warrant  of  arrest  may 
issue  against  the  said  ship  her  boats,  tackle,  apparel, 

and  furniture  ;  and  also  process  of  monition,  commanding  the 
marshal  to  cite  and  admonish  the  aforesaid  E.  F.,  part-owner 


414  ADMIRALTY  LAW. 

of  the  said  ship  as  aforesaid,  and  the  aforesaid  C.  D.,  master 
as  aforesaid,  and  all  other  persons  in  general  who  have  or 
pretend  to  have  any  right,  title,  or  interest  therein,  to  appear 
and  answer  the  libellant  in  the  premises,  and  especially  show 
cause,  if  any  they  have,  why  the  said  ship  shall  not  be  de- 
tained in  custody,  and  not  allowed  to  depart  from  the  afore- 
said port  of  until  good  and  suflBcient  security  be  given 
to  the  libellant  to  the  extent  of  his  aforesaid  interest  therein ; 
and  if  no  suflBcient  cause  to  the  contrary  be  shown,  that  this 
honorable  court  will  pronounce  accordingly,  and  will  decree 
the  said  ship  to  remain  under  arrest,  until  such  security  shall 
be  given  as  aforesaid,  and  for  such  other  and  further  relief 
and  redress  as  to  right  and  justice  appertain,  and  the  court 
is  competent  to  give  in  the  premises. 


Form  No.  38. 

ORDER  ON  LIBEL,  THAT  PROCESS  ISSUE. 

On  filing  the  within  libel  and  otherwise  complying  with 
the  rules  of  the  court,  let  a  issue  in  this  cause  against 

{according  to  the  libel). 


Form  No.  39. 

ORDER  ON  LIBEL,   THAT  WARRANT  OF  ARREST  ISSUE. 

On  filing  the  within  libel  and  otherwise  complying  with 
the  rules  of  the  court,  let  a  warrant  of  arrest  issue  in  this 
cause  against  C.  D.,  the  defendant,  and  let  him  be  held  to 
bail  in  dollars. 


Form  No.  40. 

DILATORY  EXCEPTIONS  TO  A  LIBEL. 

The  exceptions  of  C.  D.,  defendant,  to  the  libel  of  A.  B., 
libellant,  filed  in  the  above  cause : 


APPENDIX.  415 

First  Exception.  —  That  the  same  is  not  signed  by  the 
libellant,  nor  by  any  proctor  of  this  court. 

Second  Exception. —  That  the  same  does  not  allege  that 
the  libellant  has  sustained  any  damages  in  the  matter  of  the 
libel ;  nor  that  the  defendant  is  indebted  to  the  libellant  in 
any  sura. 

Third  Exception.  —  That  the  third  article  thereof  is  scan- 
dalous and  impertinent. 

Proctor. 


Form  No.  41. 
EXCEPTIONS  TO  A  LIBEL  FOR  MISJOINDER. 

C.  D.,  the  defendant,  excepts  to  the  libel  in  this  cause,  for 
this :  — 

First.  That  it  misjoins  in  the  same  cause  a  suit  in  rem 
against  the  ship  and  a  suit  in  personam  against  C.  D., 

the  master  thereof. 

Second.  That  it  misjoins  an  alleged  cause  of  action  against 
the  vessel  for  a  violation  of  a  charter-party,  and  also  an 
alleged  cause  of  action  against  C.  D.  for  the  appropriating 
of  certain  property  by  the  said  C.  D. 

Third.  That  it  misjoins  parties  who  cannot  rightfully  be 
joined  in  such  a  suit,  and  misjoins  causes  of  action  which  can- 
not be  lightfully  joined  in  such  a  suit. 

Proctor. 


Form  No.  42. 

PEREMPTORY  EXCEPTION  TO  LIBEL. 

The  exception  of  C.  D.,  defendant,  to  the  libel  of  A.  B., 
libellant,  alleges  that,  on  the  day  of  last,  the  said 

libellant,  in  consideration  of  one  dollar  to  him  paid,  released 
the  said  defendant  from  the  cause  of  action  set  forth  in  the 
said  libel ;  and,  therefore,  the  said  defendant  is  not  bound 
further  to  answer  the  same  ;  and  he  prays  that  the  said  libel 
may  be  dismissed  with  costs. 


416  ADMIRALTY  LAW. 


Form  No.  43. 

COMMENCEMENT  OF  AN  ANSWER  BY  THE  OWNER  OF  A 
VESSEL,  PROCEEDED  AGAINST  IN  A  SUIT  IN  REM, 
WHERE  THE  CLAIM  OF  PROPERTY  IS  INCORPORATED 
IN  THE  ANSWER, 

District  Court  of  the  United  States  of  America,  >  r    -i  j   •    i, 

_.     .       .  ^  >  In  Admiralty. 

District  of  ) 

The  answer  of  G.  H.,  owner  and  claimant  of  the  ship 
to  the  libel  of  A.  B.,  against  the  said  ship. 

And  now  comes  G.  H.,  of  owner  of  the  ship 

and  for  answer  to  the  libel  of  A.  B.,  against  the  said  ship, 
doth  allege  and  propound  as  follows,  to  wit :  — 

First.,  That  the  said  G.  H.  is  the  true  and  hona  fide  owner 
of  (or  owner  of  one-fourth  of,  or  otherwise.,  as  the  case  may  he') 
the  said  ship        and  that  no  other  person  is  the  owner  thereof. 

Second.  That,  &c. 


Form  No.  44. 

THE   LIKE,   WHEN    THE    CLAIM    IS    INTERPOSED    BY    AN 
AGENT  OR  A  CONSIGNEE. 

In  Admiralty. 

The  answer  of  E.  F.,  agent  of  G.  H.,  the  owner  (or  of 
E.  F.,  the  consignee),  and  claimant  of  the  ship  to  the 

libel  of  A.  B.,  against  the  said  ship. 

And  now  comes  E.  F.,  of  agent  of  G.  H.,  of 

the  owner  (or  E.  F.,  of  consignee)  of  the  ship 

and  for  answer  to  the  libel  of  A.  B.  against  the  said  ship 
doth  allege  and  propound  as  follows,  to  wit :  — 

First.  That  the  said  G.  H.  is  the  true  and  bona  fide  owner 
of  the  said  ship  and  that  no  other  person  is  the  owner 

thereof;  and  that  he,  the  said  E.  F.,  is  duly  authorized  by  the 
said  G.  H.  to  put  in  a  claim  on  his  behalf,  to  the  said  ship,  in 
this  suit. 

Second.  That,  &c. 


APPENDIX.  417 


Form  No.  45. 

THE  LIKE  WHERE  THE    CLAIM  IS  INTERPOSED  BY  THE 

MASTER. 
In  Admiralty. 

The  answer  of  C.  D.,  master  and  claimant  of  the  ship 
in  behalf  of  G.  H.,  the  owner  thereof,  to  the  libel  of 
A.  B.  against  the  said  ship. 

And  now  comes  C.  D.,  master  of  the  said  ship  and 

for  answer  to  the  libel  of  A.  B.  against  the  said  ship  doth 
allege  and  propound  as  follows,  to  wit :  — 

First.  That  G.  H.,  of  is  the  true  and  bona  fide  owner 

of  the  said  ship  and  that  no  other  person  is  the  owner 

thereof ;  and  that  he,  the  said  C.  D.,  is  now  the  master  of  the 
said  ship,  and  as  such  master  has  the  possession,  and  is  the 
lawful  bailee  thereof  for  the  said  G.  H. 

Second.  That,  &c. 


Form  No.  46. 

COMMENCEMENT  OF  AN  ANSWER  IN  A  SUIT  IN 

PERSONAM. 
In  Admiralty. 

The  answer  of  C.  D.,  the  defendant,  to  the  libel  of  A.  B., 
libellant. 

And  now  comes  C.  D.,  of  and  for  answer  to  the  libel  of 

A.  B.  against  him  the  said  C.  D.,  doth  allege  and  propound 
as  follows,  to  wit :  — 

First.  That,  &c. 


Form  No.  47. 

CONCLUSION  OF  THE  ANSWER, 

That  all  and  singular  the  premises  are  true. 

Wherefore  the  respondent  prays  that  this  honorable  court 
will  pronounce  against  the  demand  of  the  libellant  in  his 
aforesaid  libel  mentioned  and  set  forth,  with  costs. 

27 


418  ADMIRALTY  LAW. 

FoEM  No.  48. 

STIPULATION  FOR  COSTS  TO   BE  GIVEN  BY  THE 
CLAIMANT. 

Whereas,  a  libel  was  filed  in  this  court  on  the  day 

of  in  the  year  of  our  Lord  one  thousand  eight  hundred 

and  by  A.  B.,  against  for  the  reasons  and  causes 

in  the  said  libel  mentioned. 

And  whereas  a  claim  has  been  filed  in  said  cause  by  C.  D., 
and  the  said  C.  D.  and  E.  F.,  his  surety,  the  parties  hereto, 
hereby  consenting  that  in  case  of  default  or  contumacy  on 
the  part  of  the  claimant  or  his  surety,  a  summar}'^  decree  may 
be  entered  against  them  and  each  of  them,  and  that  execu- 
tion thereon  for  the  sum  of  dollars  may  issue  against 
their  goods,  chattels,  and  lands. 

Now,  therefore,  it  is  hereby  stipulated  for  the  benefit  of 
whom  it  may  concern  that  the  stipulators  undersigned  are, 
and  each  of  them  is,  hereby  bound  in  the  sum  of  dol- 

lars, conditioned  that  the  claimant  above  named  shall  pay  all 
costs  and  expenses  which  shall  be  awarded  against  him  by 
the  final  decree  of  the  court  or  upon  an  appeal  by  the  appel- 
late court. 

Taken  and  acknowledged  before  me,  this       day  of      18 


U.  S.  Commissioner. 
United  States  op  America, 
District  of 

party   to   the   above  stipulation,   being   duly 

sworn,  deposes  and  says  that  he  is  worth  the  sum  of 
dollars,  over  and  above  all  his  just  debts  and  liabilities. 
Sworn  to  before  me,  this  dav  of  18 


Form  No.  49. 

EXCEPTIONS  TO  AN  ANSWER  — FOR  INSUFFICIENCY. 

Exceptions  taken  by  the  said  libellant  to  the  answer  of 
said  C.  D.,  claimant  (or  defendant),  in  the  above  cause,  to 
the  libel  of  the  said  A.  B.,  filed  herein. 


APPENDIX.  419    * 

First  Exception.  —  For  that  the  said  claimant  (or  defend- 
ant) has  not  well  and  suflBciently  answered  and  set  forth 
(here  state  in  what  the  answer  i%  insufficient^. 

Second  Exception. —  For  that  (here  set  forth  the  other  matr 
ters  in  which  the  answer  is  insufficient^^  in  all  which  particulars 
the  said  answer  of  the  said  claimant  (or  defendant)  is  imper- 
fect, insufficient,  and  evasive,  and  the  libellant  therefore  ex- 
cepts thereto,  and  prays  that  the  said  claimant  (or  defendant) 
may  be  compelled  to  put  in  a  further  and  sufficient  answer  to 
the  said  libel. 


Proctor  for  Libellant. 


Form  No.  50. 

AFFIDAVIT  TO  OBTAIN  INTERLOCUTORY  SALE. 
District  of  ss. 

A.  B.,  one  of  the  libellants  in  this  cause,  being  duly  sworn, 
says,  that  {here  insert  a  statement  of  the  facts  showing  the 
necessity  for  a  sale,  as,  the  ship  is  now  at  the  wharf  in 

the  port  of  subject  to  large  and  increasing  expense  for 

wharfage,  keeper's  fees,  and  other  expenses.  That  she  is  in 
a  damaged  condition,  and  requires  care  and  repairs.  That  a 
large  portion  of  her  cargo  is  perishable,  being  sugar,  and  in 
a  wet  and  damaged  condition.  The  only  claims  that  have 
been  interposed  are  of  C.  D.,  &c.)  That  in  his  opinion  the 
interest  of  all  parties  concerned  will  be  promoted  by  a  speedy 
judicial  sale  of  said  ship,  her  tackle,  apparel,  and  furniture, 
and  cargo,  the  proceeds  of  such  sale  to  be  brought  into 
court  for  the  benefit  of  whom  it  may  concern,  subject  to  the 
further  order  of  the  court. 

A.  B. 

Sworn  to  before  me,  this  day  of  18 


420  ADMIRALTY  LAW. 

Form  No.  51. 

NOTICE  OF  MOTION  FOR  INTERLOCUTORY  SALE. 

Sir,  —  You  will  please  take  notice  that,  on  the  libel  and 
claim  in  this  cause,  and  on  the  affidavit  of  A.  B.,  a  "copy  of 
which  is  annexed  hereto,  a  motion  will  be  made  before  his 
Honor  judge  of  this  court,  on  the  day  of 

18       at  o'clock  in  the  noon  of  that  day,  for  an 

order  that  the  ship  and  her  cargo  above  mentioned  be 

sold  under  the  direction  of  the  marshal,  and  the  proceeds 
brought  into  court. 

Dated  18 

Yours,  

Proctor  for  Libellant. 
To  — Proctor  for  Claimant. 


Form  No.  62. 

ORDER  FOR  INTERLOCUTORY  SALE  OF  SHIP  AND  CARGO. 

On  reading  and  filing  the  affidavit  of  A.  B.,  and  the  ad- 
mission of  proctor  for  the  claimant,  and  on  motion  of 
proctor  for  the  libellant,  it  is  ordered,  that  the  ship 
her  tackle,  apparel,  and  furniture,  and  cargo,  be  sold 
by  the  marshal  on  days'  public  notice,  and  that  a  writ 
of  venditioni  exponas  issue  accordingly ;  and  it  is  further 
ordered,  that  the  marshal  bring  the  proceeds  of  such  sale 
into  this  court,  and  pay  the  same  to  the  clerk  thereof. 


Form  No.  53. 

ORDER  APPOINTING  APPRAISERS. 

On  motion  of  proctor  for  the  libellant  {or  claimant), 

it  is  ordered  that  C.  D.  and  E.  F.  be  and  they  are  here- 
by, appointed  appraisers,  to  appraise  the  value  of  the  above- 
mentioned  (here  describe  the  property"),  proceeded  against 
herein.  And  it  is  further  ordered,  that  the  clerk  of  this 
court  give  notice  of  the  appointment  of  said  C.  D.  and  E.  F. 
as  such  appraisers. 


APPENDIX.  421 

Form  No.  54. 
NOTICE  TO  APPRAISERS. 

Sir, —  Please  to  take  notice,  that  you,  together  with  E.  F., 
have  been  appointed  appraisera  to  appraise  the  value  of  {here 
describe  the  property')^  mentioned  in  the  above-entitled  suit, 
and  you  are  hereby  requested  to  appear  before  the  said  court 
(or^  if  the  application  he  made  in  vacation^  before  the  judge  of 
the   said   court)   at  on  at  o'clock  in   the 

noon,  to  take  the  oath  required  by  law. 

Dated  18  Yours,  &c. 

Clerk. 

To  C.  D. 

Form  No.  55. 

APPRAISERS*  OATH. 

We,  the  subscribers,  having  been  duly  appointed  appraisers 
to  appraise  (here  describe  the  property')^  mentioned  in  the 
above-entitled  suit,  do  severally  solemnly  swear. that  we  will 
faithfully  and  fairly  appraise  the  same,  and  make  a  true  re- 
port of  the  value  thereof,  according  to  the  best  of  our  under- 
standing, without  unnecessary  delay. 

CD. 

E.  F. 

Subscribed  and  sworn  to,  this  day  of  before  me, 

U.  S.  Commissioner. 


Form  No.  56. 

NOTICE  OF  APPRAISEMENT. 

The  undersigned  having  been  appointed  appraisers  to  ap- 
praise {here  describe  the  property")^  do  hereby  give  public 
notice,  that  we  will  proceed  to  appraise  the  same  at  on 

the  day  of  18        at  o'clock       M.  of  that 

day. 

Dated  18  C.  D. 

E.  F. 


422  ADmRALTY  LAW. 

Form  No.  57. 
APPRAISERS'   REPORT. 

The  undersigned  having  been  duly  appointed  and  sworn  as 
appraisers  to  appraise  the  value  of  (^describe  the  property')^  do 
report  that  we  have  examined  and  appraised  the  same,  and  do 
find  that  the  same  is  worth  the  sum  of  dollars. 

Dated  18 

All  of  which  is  respectfully  submitted.  C.  D. 

E.  F. 

— *— 

Form  No.  68. 

CONSENT  TO  STIPULATE  FOR.  PROPERTY  WITHOUT 
PROCESS. 

A  libel  having  been  filed  in  this  cause,  I  hereby  consent 
that  no  process  issue  thereon  to  arrest  the  said  vessel,  pro- 
vided that,  in  the  course  of  this  day,  E.  F.,  the  owner  there- 
of, file  a  claim,  and  with  G.  H.,  as  surety,  enter  into  the  usual 
stipulation  for  costs  and  value,  in  the  sum  of  dollars,  in 

the  same  manner  as  if  the  said  vessel  were  arrested,  and 
were  to  be  discharged  on  stipulation. 

Dated  18  

Proctor  for  Lihellant, 


Form  No.  69. 

CONSENT   THAT  A  VESSEL    BE   DISCHARGED    ON 
STIPULATION. 

The  ship  having  been  arrested  on  the  process  issued 

in  this  cause,  we  consent  that,  on  filing  the  usual  stipulation 
for  costs  and  the  usual  stipulation  to  appear,  abide,  and  per- 
form the  decree  in  th6  sum  of  dollars,  and  on  filing  a 
claim,  and  on  complying  with  the  rules  of  the  court  as  to  the 
fees  of  the  officers  of  court,  the  said  ship  be  discharged  from 
custody  and  arrest. 

Dated  18  

Proctor  for  Libellant, 


APPENDIX.  423 

Form  No.  60. 

CONSENT  — FIXING  THE  VALUE  WITHOUT  APPRAISEMENT 
AND  DISCHARGING  THE  PROPERTY  FROM  CUSTODY. 

I  hereby   consent  that  the  value  of  the   ship  her 

tackle,  apparel,  and  furniture,  be  fixed  at  dollars  with- 

out appraisement,  and  that,  on  filing  a  claim  and  the  necessary 
stipulations  for  costs  and  value,  &c.,  and  complying  with  the 
rules  of  court  as  to  fees,  the  said  ship  be  discharged  from 
custody. 

Dated  18  

Proctor  for  Libellant. 


Form  No.  61. 

STIPULATION  FOR  VALLT:. 

Whereas,  a  libel  was  filed   on  the  day  of  in 

the  year  of  our  Lord  one  thousand  eight  hundred  and 
by  A.  B.  against  the  ship  her  tackle,  apparel,  and  fur- 

niture, for  the  reasons  and  causes  in  the  said  libel  mentioned; 
and  whereas  the  said  vessel,  her  tackle,  apparel,  and  furniture, 
is  now  in  the  custody  of  the  marshal  under  the  process  issued 
in  pursuance  of  the  prayer  of  said  libel,  and  is  of  the  value 
of  dollars,  as  appears  by  a  consent  (or  appraisement) 

now  on  file  in  said  court. 

And  whereas  a  claim  to  said  vessel  has  been  filed  by 
C.  D.,  and  the  said  C.  D.  and  E.  F.,  his  surety,  the  parties 
hereto  hereby  consent  and  agree  that  in  case  of  default  or 
contumacy  on  the  part  of  the  claimant  or  his  sureties,  a  sum- 
mary decree  may  be  entered  against  them  and  each  of  them, 
and  that  execution  may  issue  against  their  goods,  chattels, 
and  lands. 

Now,  therefore,  it  is  hereby  stipulated,  for  the  benefit  of 
whom  it  may  concern,  that  the  stipulators  undersigned  are, 
and  each  of  them  is,  bound  in  the  sum  of  dollars,  con- 

ditioned that  they  shall  at  any  time,  upon  the  interlocutory 
and  final  order  and  decree  of  the  said  District  Court,  or  of 
any  appellate  court  to  which  the  above-named  suit  may  pro- 


424  ADMIRALTY  LAW. 

ceed,  and  upon  notice  of  such  order  or  decree,  to  said  claim- 
ant, or  Esquire,  his  proctor,  pay  into  court  the  full 
value  aforesaid,  and  abide  by,  and  pay  the  money  awarded  by, 
the  final  decree  rendered  by  this  court  or  the  appellate  court 
if  any  appeal  intervene. 

Taken  and  acknowledged  this  day  of  18 

before  me, 


U.  S.  Commissioner. 


United  States  of  America,} 


District  of 

party   to    the  above   stipulation,  being   duly 


sworn,  deposes  and  says  that  he  is  worth  the  sum  of 
dollars,  over  and  above  all  his  just  debts  and  liabilities. 


Sworn  to  before  me  this  day  of  18 


U.  S.  Commissioner. 


Form  No.  62. 
BOND  UNDER  SECTION  941. 

Know  all  men  by  these  presents,  that  we,  C.  D.,  E.  F., 
and  G.  H.,  are  held  and  firmly  bound  unto  A.  B.  in  the  sum 
of  (^double  the  amount  claimed  in  the  libel)  dollars,  law- 

ful money  of  the  United  States  of  America,  to  be  paid  to  the 
said  his  executors,  administrators,  or  assigns ;  to  which 

payment,  well  and  truly  to  be  made,  we  bind  ourselves  and 
each  of  us,  jointly  and  severally,  our  and  each  of  our  heirs, 
executors,  and  administrators,  firmly  by  these  presents,  sealed 
with  our  seals.     Dated  this  day  of  in  the  year  of 

our  Lord  one  thousand  eight  hundred  and 

Whereas,  a  libel  has  been  filed  in  the  District  Court  of  the 
United  States  for  the  District  of  on  the 

day    of  18        by  against    the    ship    or    vessel 

in  a  certain  action,  &c.,  civil  and  maritime,  for 
therein  alleged  to  be  due  and  owing  to  the  said  libellant, 
amounting  to  (the  amount  claimed  in  the  libel). 


APPENDIX.  425 

The  condition  of  this  obligation  is  such,  that  if  the  above- 
bounden  shall  abide  and  answer  the  decree  of  the  court 

in  such  cause,  then  the  above  obligation  to  be  void  ;  otherwise 
to  remain  in  full  force  and  virtue. 

Sealed  and  delivered  in  presence  of 

United  States  of  America, 
District  of 

being  duly  sworn,  says  that  he  resides  at  No. 

and  that  he  is  worth  the  sura  of  dollars  over 

and  above  all  his  just  debts  and  liabilities. 

Sworn  to  before  me,  this  day  of  18 

[Certificate  of  approval  hy  the  Judge  or  Collector  of  the  port.] 

I  hereby  approve  of  the  sureties  in  the  within  bond. 
Dated,  &c. 

(Signed  by  the  Judge  or  the  Collector.) 


Form  No.  63. 

PENAL   BOND    TO   THE   MARSHAL   ON    ARREST   OF    THE 

PERSON. 

Know  all  men  by  these  presents,  that  we,  C.  D.,  E.  F.,  and 
G.  H.,  are  held  and  firmly  bound  unto  Y.  Z.,  marehal  for  the 
District  of  in  the  sura  of  dollars,  lawful 

money  of  the  United  States  of  America,  to  be  paid  to  the 
said  Y.  Z.,  his  executors,  administrators,  or  assigns  ;  to  which 
payment,  well  and  truly  to  be  made,  we  bind  oui-selves  and 
each  of  us,  jointly  and  severally,  our  and  each  of  our  heirs, 
executors,  and  administratoi's,  firmly  by  these  presents.  Sealed 
with  our  seals.     Dated  this  day  of  in  the  year 

of  our  Lord  one  thousand  eight  hundred  and 

Whereas,  a  libel  has  been  filed  in  the  District  Court  of  the 
United  States  for  the  District  of  on  the 

day  of  18  by  A.   B.  against  the  above-bounden 

C.  D.,  in  a  certain  action,  civil  and  maritime,  for  wages, 
therein  alleged  to  be  due  and  owing  to  the  said  libellant, 
araounting  to  dollars. 


426  ADMIRALTY  LAW. 

The  condition  of  this  obligation  is  such,  that  if  the  above- 
bounden  C.  D.  shall  appear  in  the  said  suit,  before  the  said 
District  Court  of  the  United  States  for  the  Dis- 

trict of  on  the  day  of  18       at  in  the 

city   of  and  abide  by   all  orders  of  the   court,  inter- 

locutory or  final,  in  the  cause,  and  pay  the  money  awarded  by 
the  final  decree  rendered  therein  in  the  said  court,  or  in  any 
appellate  court,  then  the  above  obligation  to  be  void ;  other- 
wise to  remain  in  full  force  and  virtue. 

Sealed  and  delivered  in  presence  of 

United  States  of  America, 
District  of 

being  duly  sworn,  says  that  he  resides  at  No. 

and  that  he  is  worth  the  sum  of  dollars  over 

and  above  all  his  just  debts  and  liabilities. 

Sworn  to  before  me,  this  day  of  18 


Form  No.  64. 

STIPULATION"  FOR  THE    SAFE  RETURN  OF  A  VESSEL  IN 
A  SUIT  BY  A  PART-OWNER. 

"Whereas,  a  libel  was  filed  in  this  court,  on  the  day 

of  in  the  year  of  our  Lord  one  thousand  eight  hundred 

and  by  A.  B.,  owner  of  part  of  the  ship  or  vessel 

called  the  her  tackle,  &c.,  against  the  said  ship  or  ves- 

sel, her  tackle,  &c.,  for  the  reasons  and  causes  in  the  said 
libel  mentioned,  which  said  vessel,  her  tackle,  &c.,  is  of  the 
value  of  dollars,  as  appears  by  the  consent  (or  appraise- 

ment) on  file  in  said  cause,  and  C.  D.  and  E.  F.,  the  other 
owners  of  the  said  vessel,  and  G.  H.  and  I.  J.,  their  sureties, 
parties  hereto,  hereby  consenting  and  agreeing,  that  in  case 
of  default  on  the  part  of  the  libellant  or  his  sureties,  execu- 
tion may  issue  against  their  goods,  chattels,  and  lands,  for  the 
sum  of  dollars. 

Now,  therefore,  it  is  hereby  stipulated  and  agreed  for  the 
benefit  of  whom  it  may  concern,  that  the  stipulators  under- 


APPEXDIX.  427 

signed  are,  and  each  of  them  is,  bound  in  the  sum  of 
(^double  tJie  value  of  the  libellant's  share)  dollars,  conditioned 
that  the  said  vessel  shall  safely  return  from  her  present  in- 
tended voyage,  to  the  port  of 

Taken  and  acknowledged  this  day  of  18 


U.  S.  Commissioner. 


United  States  of  America,  )  ^ 


District  of 

and  parties  to  the  above   stipula- 


tion, being  duly  sworn,  depose  and  say  each  for  himself, 
that  he  is  worth  the  sum  of  dollars,  over  and  above 

all  his  just  debts  and  liabilities. 


Form  No.  65. 

PROCEEDINGS  UNDER  SECTION  4284  OF  THE  REVISED 
STATUTES  OF  THE  UNITED  STATES. 

To  the  Honorable,  &c. 

The  petition  of  respectfully  shows  :  — 

That  your  petitioners  are  the  sole  owners  of  the  said 
steamboat  her  engine,  tackle,  apparel,  and  furniture. 

That  early  in  the  morning  of  the  day  of  last 

past,  a  collision  occurred  upon  the  waters  of  near 

between   the  said  steamboat  an   American   vessel,    of 

which    your    petitioners   were   then    the    owners,   and    the 
schooner  or  vessel  called  the  the  said  steamboat  be- 

ing then  bound  on  her  regular  trip  from  the  city  and  port  of 

in  the  State  of  to  the  city  and  port  of 

with  a  cargo  consisting  of  goods,   wares  and  merchandise 
on  board. 

That  in  consequence  of  such  collision,  the  said  steamboat 
was  set  on  fire,  and  soon  afterwards  sank,  with  all  her  said 
cargo  on  board  of  her. 

That  such  collision  and  fire  were  occasioned  or  incurred 
without  the  design,  neglect,  privity,  or  knowledge  of  your 
petitioners. 


428  ADMIRALTY  LAW. 

That  on   or  about  the  day  of  last  past,  the 

libel  herein  was  filed  by  the  above-named  libellants  against 
the  said  steamboat,  &c.,  to  recover  the  sum  of  eight  thousand 
dollars  for  damages,  which  the  libellants  allege  they  have 
sustained  by  reason  of  the  destruction  of  certain  articles  of 
merchandise  specified  in  said  libel,  which,  it  is  therein  alleged, 
were  shipped  on  board  of  said  steamboat,  and  upon  the  filing 
of  said  libel  process  was  issued  out  of  this  court,  at  the  in- 
stance of  said  libellants,  under  which  the  said  steamboat,  &c. 
(the  same  having  been  raised  and  brought  to  the  port  of 
),  was  seized  by  the  marshal  of  the  said  Dis- 

trict, and  is  now  in  the  custody  of  this  court. 

That  the  said  steamboat  was  freighted  with  a  large 

cargo,  consisting  of  goods,  wares,  and  merchandise,  consigned 
and  belonging  to  a  very  large  number  of  individuals,  com- 
panies, and  firms,  whose  names  are  unknown  to  your  petition- 
ers, and  the  same  was  to  be  delivered  by  said  steamboat  at 
the  city  of  and  that  by  reason  of  the  said  collision  and 

fire  the  said  steamboat  became  a  total  wreck,  and  was  un- 
able to  proceed  on  her  said  trip  aforesaid. 

And  your  petitioners  further  show,  that  the  owners  and 
consignees  of  the  goods  on  board  said  steamboat  were  very 
numerous,  and  your  petitioners  have  reason  to  believe  and 
do  believe  that  in  addition  to  the  claim  made  by  the  libellants 
herein,  other  claims  on  behalf  of  the  owners  of  other  portions 
of  said  cargo  on  board  of  the  said  steamboat  at  the  time  of 
said  collision  and  fire,  will  be  made  against  your  petitioners 
as  owners  of  said  steamboat,  &c.,  or  against  the  said  steam- 
boat, her  engine,  tackle,  apparel,  and  furniture,  and  suits  and 
proceedings  will  be  instituted  to  recover  the  same,  which 
claims,  if  established,  will  greatly  exceed  the  value  of  said 
steamboat,  &c.,  and  of  her  freight  pending  at  the  time  of  such 
collision,  fire,  and  loss. 

Your  petitioners  therefore  pray  that  they  may  be  declared 
as  entitled  to  the  benefit  of  section  4284  of  the  Revised 
Statutes  of  the  United  States,  that  the  said  steamboat,  her 
engine,  tackle,  apparel,  and  furniture,  and  her  freight  then 
pending  at  the  time  of  the  said  collision  and  fire,  may  be  ap- 
praised by  appraisers  to  be  appointed  by  this  court. 


APPENDIX.  429 

That  your  petitioners  may  be  autliorized  to  give  a  stipula- 
tion with  good  and  sutiicient  sureties,  according  to  the  rules 
and  practice  of  this  court,  for  such  appraised  value,  such 
stipulation  to  be  for  the  benefit  of  the  libellants  herein  (in 
case  they  shall  establish  the  liability  of  the  said  steamboat), 
and  of  all  other  claimants  who  may,  by  actions  or  otherwise, 
intervene  and  prove  to  be  legally  entitled  to  compensation 
for  losses  sustained  by  reason  of  said  collision  and  fire,  in  pro- 
portion to  the  amount  of  the  respective  losses  of  all  such 
claimants,  and  that  upon  the  due  execution  of  such  stipu- 
lation, the  said  steamboat,  her  engine,  tackle,  apparel,  and 
furniture,  as  well  as  the  owners  thereof,  may  be  discharged 
from  all  liability  for  all  losses  incurred  by  reason  of  such  col- 
lision and  fire,  and  that  your  petitioners  may  have  such  other 
or  further  relief  as  may  be  just  and  proper  iu  the  premises 
and  as  this  court  shall  be  pleased  to  grant. 

A.  B. 
E.  F. 

Proctor. 


Form  No.  66. 

NOTICE  OF  MOTION  ON  FOREGOING  PETITION. 

Sir,  —  Please  to  take  notice  that  upon  the  annexed  peti- 
tion and  claim  herein,  and  the  libel,  process,  and  proceedings 
in  this  cause,  an  application  will  be  made  to  this  court  at 
chambers  of  the  judge  thereof,  in  the  United  States  court- 
room building  in  the  city  of  on  the  day  of 
instant,  at  o'clock  in  the  forenoon  of  that  day,  or  as 
soon  thereafter  as  counsel  can  be  heard,  for  an  order  in  ac- 
cordance with  the  prayer  of  the  said  petition. 

Yours,  &c. 

Dated  18  

Proctor  for  Petitioners. 

To  Esq.,  Proctor  for  Libellants. 


430  ADMIRALTY  LAW. 


Form  No.  67. 

ORDER  FOR  A  REFERENCE  TO  ASCERTAIN  AND  REPORT 
THE  PRESENT  VALUE  OF  THE  VESSEL,  AND  THAT 
THE  CLAIMANTS  GIVE  A  STIPULATION  IN  THE  AMOUNT 
SO  REPORTED. 

On  reading  and  filing  the  petition  of  the  owners  and 

claimants  of  the   above-named  steamboat  her  engine, 

tackle,  apparel,  and  furniture,  together  with  admission  of  ser- 
vice thereof,  and  of  notice  of  motion  on  the  proctor  of  the 
libellants  herein,  and  due  proof  having  been  filed  of  the  pub- 
lication of  an  order  heretofore  made  in  this  cause,  requiring 
all  parties  having  claims  against  the  said  steamboat  or  her 
owners  arising  out  of  the  collision,  fire,  and  loss  mentioned  in 
said  petition,  to  show  cause,  if  any  they  have,  why  the  prayer 
of  the  said  petitioners  should  not  be  granted,  &c. ;  and  after 
hearing  the  counsel  of  the  said  petitionei-s  in  support  of  the 
said  petition,  and  Esq.,  of  counsel  for  the  libellants  in 

this  cause,  and  also  the  counsel  for  other  parties  who  claim 
damages  by  reason  of  losses  alleged  to  have  been  sustained 
by  them,  occasioned  by  the  collision  and  fire  mentioned  in 
said  petition,  in  opposition  thereto,  and  the  owners  and  claim- 
ants of  the  said  steamboat,  &c.,  having  thereafter  applied  to 
bond  the  said  steamboat,  according  to  the  rules  and  practice 
of  this  court  in  admiralty,  and  it  appearing  that  the  present 
value  of  the  said  steamboat,  &c.,  is  the  same  as  her  value  im- 
mediatelj^  previous  to  said  accident,  and  mature  deliberation 
being  thereupon  had,  it  is,  on  motion  of  Esq.,  of  counsel 

for  said  petitioners,  ordered  that  it  be  referred  to  Esq., 

one  of  the  commissioners  of  this  court,  upon  at  least  two 
days'  notice  to  all  proctors  for  the  libellants,  who  have  filed 
libels  against  the  said  steamboat,  to  ascertain,  appraise,  and 
report  to  this  court  the  present  value  of  the  said  steamboat, 
her  engine,  tackle,  &c.,  and  upon  the  coming  in  of  said 
report,  the  said  as  such  owners  and  claimants  of  said 

steamboat,  &c.,  give  a  stipulation  with  sufficient  sureties, 
according  to  the  course  and  practice  of  this  court  on  the 
bonding  of  vessels,  in  the  amount  so  reported,  and  that  such 


APPENDIX.  431 

stipulation  be  for  the  benefit  of  the  libellants  herein  (in  case 
they  shall  establish  the  liability  of  said  steamboat),  and  of  all 
persons  and  parties  who  may  by  due  proceedings  in  this  court 
show  themselves  entitled  to  liens  upon  said  vessel,  by  reason 
of  such  collision  and  fire,  and  that  upon  the  entering  into  and 
filing  of  such  stipulation,  the  said  steamboat,  her  engine, 
boiler,  tackle,  apparel,  and  furniture,  be  discharged  from  all 
liability  for  losses  and  damages  occasioned  to  all  the  parties 
for  whose  benefit  the  said  stipulation  is  given. 

And  it  is  further  ordered  that  the  said  libellants,  and  all 
other  persons  and  parties  having  liens  on  the  said  steamboat, 
her  engine,  boiler,  tackle,  apparel,  and  furniture,  for  loss  or 
damage  by  reason  of  such  collision  and  fire,  be  and  they  are 
hereby  declared  to  be  bound  by  this  order. 

Clerk. 


Form  No.  68. 

STIPULATION  FOR  VALUE  IN  PURSUANCE  OF  THE 
FOREGOING  ORDER. 

Whereas,  a  libel  was  filed  on  the  day  of  in  the 

year  of  our  Lord  one  thousand  eight  hundred  and  by 

against  the  steamboat  or  vessel  called  the  her 

engine,  tackle,   apparel,  and  furniture,  for  the  reason  and 

causes  in  the  said  libel  mentioned. 

And  whereas,  the  said  steamboat  is  in  the  custody 

of  the  marshal  of  this  district,  under  the  process  issued  in 
pursuance  of  the  prayer  of  said  libel. 

And  whereas,  since  the  filing  of  said  libel,  certain  other 
libels  have  been  filed  for  and  in  behalf  of  certain  other  libel- 
lants against  the  said  steamboat,  &c.,  for  the  reasons  and 
causes  in  the  respective  libels  mentioned  and  set  forth,  and 
the  said  vessel  is  also  in  the  custody  of  said  marshal  under 
the  process  issued  in  pursuance  of  the  prayers  of  said  libel 
respectively. 

And  whereas,  upon  the   petition  of  as  sole  owners 

and  claimants  of  the  said  steamboat,  &c.,  an  order  was  made 
and   entered  in  this  cause  on  the  day  of  last 


432  ADMIRALTY  LAW. 

past,  whereby  it  was  ordered  that  it  be  referred  to 
Esq.,  one  of  the  commissioners  of  this  court,  upon  at  least 
two  days'  notice  to  all  the  proctors  for  the  libellants  who 
have  filed  libels  against  the  said  steamboat,  to  ascertain,  ap- 
praise, and  report  to  this  court  the  present  value  of  the 
said  steamboat,  her  engine,  tackle,  &c.,  and  that  upon  the 
coming  in  of  the  said  report  the  said  and  such  owners 

and  claimants  of  said  steamboat,  &c.,  have  leave  to  give  a 
stipulation  witli  sufficient  sureties  according  to  the  course 
and  practice  of  this  court  on  the  bonding  of  vessels  in  the 
amount  so  reported,  and  that  such  stipulation  be  for  the  bene- 
fit of  the  libellants  herein  (in  case  they  should  establish  the 
liability  of  the  said  steamboat),  and  of  all  persons  and  parties 
who  might  by  due  proceedings  in  this  court  show  themselves 
entitled  to  liens  upon  the  said  vessel  by  reason  of  the  colli- 
sion and  fire  mentioned  in  the  said  petition,  and  that  upon 
the  entering  into  and  filing  of  such  stipulation,  the  said 
steamboat,  her  engine,  boiler,  tackle,  apparel,  and  furniture 
should  be  discharged  from  all  liability  for  losses  and  damages 
occasioned  to  all  the  parties  for  whose  benefit  the  said  stipu- 
lation should  be  given,  and  in  and  by  which  said  order  it  was 
further  ordered,  that  the  said  libellants  and  all  other  persons 
and  parties  having  liens  on  the  said  steamboat,  her  engine, 
boiler,  tackle,  apparel,  and  furniture,  for  loss  or  damage  by 
reason  of  such  collision  and  fire,  should  be  and  they  were 
declared  to  be  bound  by  said  order,  as  by  reference  to  the 
said  petition  and  order  now  on  file  in  the  office  of  the  clerk 
of  this  court  will  more  fully  appear. 

And  whereas,  the  said  commissioner,  in  pursuance  of  said 
order,  has  made  his  report  to  this  court,  from  which  it  ap- 
pears that  from  the  proofs  taken  by  him  he  did  find  the 
present  value  of  said  steamboat  her  tackle,  &c.,  to  be 

the  sum  of  as  it  appears  by  his  said  report  now  on  file 

in  the  office  of  the  clerk  of  this  court,  which  said  report  has 
been  confirmed. 

And  whereas,  the  undersigned,  above  named,  have 

filed  a  claim  to  said  steamboat,  &c.,  as  sole  owners  thereof, 
on  each  of  the  actions  commenced  in  this  court,  and  as  such 
claimants  and  owners  with  their  sureties,  the. parties  thereto, 


APPENDIX.  433 

have  applied  to  the  court  for  leave  to  give  this  stipulation 
and  to  have  the  same  stand  in  place  of  the  said  steamboat, 
&c.,  to  be  enforced  in  such  manner  as  the  court  may  from 
time  to  time  order  and  direct  for  the  benefit  respectively  of 
all  parties  who  have  already  filed,  or  may  hereafter  file,  libels 
in  this  court  against  the  said  steamboat,  &c.,  to  establish  or 
enforce  any  lien  or  claim  upon  or  against  her  arising  out  of 
the  said  collision  and  fire,  and  the  undersigned,  the  parties 
hereto,  hereby  consenting  and  agreeing  that  the  said  claim- 
ants and  owners  parties  hereto,  in  all  cases  in  which 
libels  may  hereafter  be  filed  in  this  court,  against  the  said 
steamboat,  &c.,  to  enforce  liens  or  claims  upon  or  against  the 
said  steamboat,  &c.,  by  reason  of  said  collision  and  fire,  upon 
notice  thereof  to  them,  or  to  Esq.,  their  proctor,  or  to 
such  other  proctor  as  may  be  substituted  in  his  stead  herein, 
to  be  given  by  publication  or  otherwise  as  the  court  may 
direct,  will,  within  the  time  limited  by  the  court,  enter  an 
appearance  in  such  causes,  without  service  of  process,  which 
is  hereby  waived ;  and  that  in  default  of  such  appeai-ance, 
such  proceedings  may  be  had  and  such  decree  made  in  such 
causes  respectively  as  to  the  court  may  seem  proper,  and 
with  the  like  effect  as  if  said  owners  and  claimants,  and  their 
sureties  the  parties  hereto,  had  appeared  and  consented 
thereto,  and  the  parties  hereby  further  consenting  and  agree- 
ing that  they  will,  to  the  extent  of  the  amount  of  this  stipula- 
tion, abide  by  and  perform  all  orders  and  decrees  of  this 
court  made  or  to  be  made  in  any  proceeding  taken  or  to  be 
taken  in  this  court,  or  in  any  appellate  court,  to  secure  the 
payment  of  any  lien  upon  the  said  steamboat,  her  engine, 
machinery,  and  furniture,  in  place  of  which  this  stipulation  is 
substituted,  which  may  have  arisen  by  reason  of  the  collision 
and  fire  above  referred  to,  and  that  in  qaae  of  default  or  con- 
tumacy on  the  part  of  the  said  owners  and  claimants,  or  their 
sureties,  execution  or  executions  not  in  all  to  exceed  the 
amount  of  this  stipulation  for  the  value  of  said  steamboat,  to 
wit,  seventy  thousand  dollars,  with  interest  thereon  from  this 
date,  may  issue  against  their  goods,  chattels,  and  lands. 
Now,  therefore,  the  condition  of  this  stipulation  is  such  that 
if  the  stipulators  undersigned,  shall  upon  the  final  order  or 

28 


434  ADMIRALTY  LAW. 

decree  of  the  said  District  Court  made  and  entered  in  the 
above  suit,  or  in  any  suit  or  proceeding  commenced  or  which 
may  be  commenced  in  said  court  to  establish  and  enforce  any 
lien  or  claim  upon  the  said  steamboat,  &c.,  by  reason  of  the 
collision  and  fire  in  the  aforesaid  libel  and  in  said  petition 
mentioned,  or  upon  the  final  decree  of  any  appellate  court,  to 
which  any  or  either  of  such  suits  or  proceedings  may  be  car- 
ried, and  upon  notice  of  such  order  or  decree  to  the  parties 
hereto,  or  to  either  of  them,  or  to  Esq.,  proctor  for  the 

claimants  of  said  steamboat,  &c.,  or  to  such  proctor  as  may 
be  substituted  in  his  stead  herein,  abide  by  all  interlocutory 
orders  and  decrees  of  the  court,  and  pay  the  money  awarded 
to  the  respective  parties  in  and  by  all  such  final  decrees  ren- 
dered by  this  court  or  the  appellate  court  (if  any  appeal 
intervene)  not  exceeding  in  the  aggregate  the  said  sum  of 
seventy  thousand  dollars,  with  interest  thereon  from  the  date 
hereof,  then  this  stipulation  to  be  void,  otherwise  to  remain 
in  full  force  and  virtue. 

[seal.] 
[seal.] 
[seal.] 
Taken  and  acknowledged  this  day  of  18 

before  me,  

U.  S.  Commissioner. 


FoEM  No.  69. 

AFFIDAVIT  TO  OBTAIN  AN  ORDER  FOR  THE  EXAMINA- 
TION OF  A  WITNESS  IN  BEHALF  OF  THE  PLAINTIFF. 

A.  B.,  being  sworn,  says  that  he  is  the  plaintiff  in  the 
above  cause,  that  he  is  advised  by  his  counsel  and  verily 
believes,  that  the  testimony  of  E.  F.,  at  present  of 
mariner  (or  as  the  fact  may  be),  is  material  and  necessary  for 
this  deponent  in  the  prosecution  of  such  cause  ;  that  the 
said  E.  F.  lives  at  more  than  one  hundred  miles  from 

where  the  court,  at  which  this  deponent  expects  the 
said  cause  will  be  tried,  is  appointed  by  law  to  be  held ; 
(or,  is  bound  on  a  voyage  to  sea ;  or,  is  about  to  go  out  of  the 


APPENDIX.  *  435 

district  in  which  the  said  cause  is  pending,  and  to  greater 
distance  than  one  hundred  miles,  as  this  deponent  is  informed 
and  verily  believes ;  or,  is  so  aged  ;  or,  so  infirm  as  to  render 
it  probable  that  he  will  not  be  able  to  attend  as  a  witness  at 
the  trial  of  such  cause)  ;  and  this  deponent  further  says  that 
he  is  informed  and  believes  C.  D.,  the  above-named  defend- 
ant, resides  at  about  miles  distant  from  the 
place  where  the  examination  of  the  said  witness  is  expected 
to  be  taken ;  and  that,  as  he  is  also  informed  and  believes, 
G.  H.,  the  attorney  of  the  said  C.  D.,  resides  at  about 
miles  from           as  aforesaid. 


FoBM  No.  70. 
ORDER  THEREON. 

Let  E.  F.,  the  witness  named  in  the  above  (or  within) 
affidavit,  be  examined  de  bene  esse  before  me  accordingly  at 
on  the  day  of  18       at  o'clock,   in 

the  noon  (if  either  the  defendant  or  his  attorney  resides 

within  one  hundred  miles  of  the  place  of  examination  then  add:') 
and  let  days'  notice  be  given  to  the  said  defendant  (or 

to  G.  H.,  the  attorney  of  said  defendant,  as  either  may  be 
nearest)  of  such  examination. 


Form  No.  71. 
NOTICE  TO  THE  OPPOSITE  PARTY  OR  HIS  ATTORNEY. 

Sm,  —  You  are  hereby  notified  that  E.  F.  will  be  examined 
de  bene  esse^  before  me,  at  on  the  day  of        18 

at        o'clock  in  the  noon,  as  a  witness  for  the  above 

plaintiflf,  according  to  the  act  of  Congress  in  such  case  made 
and  provided ;  at  which  time  and  place  you  are  entitled  by 
law  to  be  present,  and  to  put  interrogatories  to  the  said 
witness. 

Dated  Y  .  Z. 

To  C.  D.,  the  above-named  defendant,  or  F.  G.,  attorney  for  defendant. 


436  ADMIKALTY  LAW. 

FoEM  No.  72. 
DEPOSITION  DE  BENE  ESSE. 

United  States  of  America,  » 

District  of  City  of  County  of  |  **' 

Be  it  remembered,  that  on  this  day  of  in  the 

year  of  our  Lord  one  thousand  eight  hundred  and  I 

a  did  call  and  cause  to  personally  appear  before 

me,  at  my  office  at  in  the  city  of  in  the  said 

district  of  in  the  State  aforesaid  to  testify,  and  the 

truth  to  say,  on  the  part  and  behalf  of  the  in  a  certain 

civil  cause  or  matter  of  controversy,  now  depending  and  un- 
determined in  the  •  court  of  the  United  States  for  the 
district  of  at  wherein  A.  B.  is  plaintiff  and  C.  D. 

is  defendant. 

And  the  said  being  about  the  age  of  years,  and 

having  been  by  me  first  cautioned  and  sworn  to  testify  the 
truth,  the  whole  truth,  and  nothing  but  the  truth,  in  the  mat- 
ter of  controversy  aforesaid,  I  did  carefully  examine  the  said 
and  he  did  thereupon  depose,  testify,  and  say  as  fol- 
lows, viz. :  (here  set  out  the  testimony'). 

Uotted  States  op  America,  > 

District  of  > 

I,  a  do  hereby  certify,  that  the  reason  for  taking 

the  foregoing  deposition  is,  and  the  fact  is,  the  witness 
material  and  necessary  in  the  cause  in  the  caption  of  the  said 
deposition  named,  and  that  he  (here  set  forth  the 

cause  for  taking  the  depositiori). 

I  further  certify,  that  notification  of  the  time  and 

place  of  taking  the  said  deposition  signed  by  me,  was  made 
out  and  served  on  the  to  be  present  at  the  taking  of 

the  deposition  and  to  put  interrogatories  if  he  or  they 

might  think  fit. 

I  further  certify,  that  on  the  day  of  in  the  year 

of  our  Lord  one  thousand  eight  hundred  and  I  was  at- 

tended by  and  by  the  witness  who  of  sound 


APPENDIX.  437 

mind  and  lawful  age,  and  the  witness  by  me  first  care- 

fully examined  and  cautioned,  and  sworn  to  testify  the  truth, 
the  whole  truth,  and  nothing  but  the  truth,  and  the  deposi- 
tion by  me  reduced  to  writing,  in  the  presence  of  the 
witness  and  after  carefully  reading  the  same  to  the 
witness  subscribed  the  same  in  my  presence.  I  have 
retained  the  said  deposition  in  my  possession  for  the  purpose 
of  the  same  with  my  own  hand  the  court  for 
which  the  same            taken. 

And  I  do  further  certify,  that  I  am  not  of  counsel,  nor  at- 
torney, for  either  of  the  parties  in  the  said  deposition  and 
caption  named,  nor  in  any  way  interested  in  the  event  of  the 
cause  named  in  the  said  caption. 

In  testimony  whereof,  I  have  hereunto  set  my  hand  and 
seal  this  day  of  in  the  year  of  our  Lord 

one  thousand  eight  hundred  and  and  of  the  indepen- 

dence of  the  United  States  the 


INDEX. 


A. 

ABANDONMENT, 

what  constitutes,  78,  81. 

of  yessel,  79-81. 

of  vessel  by  seaman,  237. 

of  salvage,  155-160, 162.    (See  also  U.  S.  Rev.  Stat.  4535.) 

by  first  salvors,  83,  84. 

of  salvage  agreement,  123. 

of  salvage  attempt,  42. 

temporary,  does  not  make  vessel  a  derelict,  78. 

on  acceptance  of,  insurer  may  become  dominus  litis,  303. 
ABATEMENT, 

plea  of.    (See  S.  C.  Rule  15.) 
ABDUCTION, 

of  minor,  suit  for,  by  father,  maintainable,  33. 
ACCEPTANCE, 

of  salvors'  services,  41. 

of  assistance  of  strangers  in  salvage,  41. 
ACCIDENT, 

to  vessel  about  to  be  towed,  where  tug  claims  salvage,  69. 

inevitable,  definition  of,  223. 
ACT, 

limiting  liability  of  owners.     (See  U.  8.  Rev.  Stat  4282-4289.) 

form  of  libel  under.  No.  65,  p.  427. 

of  1875,  p.  353. 
ACT  OF  GOD, 

"  inevitable  accident "  proposed  instead  of,  223. 
ACTION, 

joinder  of  parties  in,  254. 

joinder  of  causes  of,  254. 

for  shares  of  salvage,  140. 

in  rem,  355-386. 

between  part-owners,  410,  411. 

in  pertonam,  355-386. 

personal,  for  wages,  238,  391-393. 


440  INDEX. 

ACTION  —  continued. 

consolidation  of,  248. 

for  seaman's  wages,  240. 

joinder  of,  in  rem  and  in  personam.  Admiralty  Rules  12-15,  17-19,  pp. 
321-323. 

rights  of  parties  in,  for  collision,  206,  207. 
ACTORS, 

both  parties  are,  275. 
ADJUSTMENT, 

of  average,  presumption  of  satisfaction  of,  251. 
ADMIRALTY, 

salvage  in,  36. 

Rules  of  the  United  States  Supreme  Court  in.    See  Rules. 

practice.    See  Practice. 

ADMIRALTY  COURTS.    See  Jukisdiction ;  Pleading;  Practice. 
jurisdiction  of,  1-35. 

determined  by  the  judicial  power,  24. 

as  determined  by  subject-matter  of  action,  4,  9,  14. 

exclusive,  1. 

in  petitory  and  possessory  actions,  29. 

in  collisions,  4,  9. 

over  policies  of  insurance,  19. 

torts,  4,  15.  33. 

offences,  30. 

navigable  waters,  4,  5,  8,  9. 
*  extends  to  waters  infra  corpus  comitatus,  5. 

extends  to  artificial  canals,  bays,  ports,  havens,  harbors, 

and  inlets,  6,  8,  9. 
in  contracts,  quasi  and  preliminary,  9, 10. 
true  limits,  a  judicial  question,  24. 
in  wharfage  claims,  9. 
■  cannot  be  conferred  on  State  courts,  1. 
over  canal-boats,  10,  14. 

ferry-boats,  10. 

floating  elevator,  10. 

tug-boats,  11. 

scow,  10, 11. 

coal-barges,  11. 

lighters,  11,  14. 

flat-boats,  11. 

derricks,  11. 

dry-dock,  9,  21. 

docks,  12. 

water-craft,  10. 

saloon-boat,  15. 

rafts,  11,  15. 

barge  adrift,  15. 


INDEX.  441 

ADMIUALTY  COURTS,  —  continued. 
jurisdiction  of,  over  produce-boats,  12. 

a  box  of  bullion  subject  to  salvage,  15. 
claim  for  use  of  ship-jard,  15. 
things  derelict,  19. 
in  case  of  personal  injury,  22. 
exclusive  as  to  mariner's  wages  in  rem,  27. 
over  carriers,  33. 

does  not  depend  on  citizenship,  4. 
in  cases  called  "  mixed,"  76. 
for  repairs  of  ships,  19. 
in  assault  and  battery,  30. 

bottomry  and  respondentia,  19. 
capture,  27. 

all  cases  of  prize,  1,  30. 
charter-party,  19. 
bill  of  lading,  19,  27. 
supplies,  28. 
over  surplus  proceeds.   (See  Zane  v.  The  President,  4  Wash. 

C.  C.  453.) 
in  salvage,  14,  16,  19. 
,  in  contracts  of  affreightment,  27. 

in  affreightments,  27. 
as  determined  by  place,  9. 
does  not  require  actual  possession  of  libelled  property, 

when,  297. 
in  claims  oi,  material-men,  28. 
in  cases  of  pilotage,  28. 
in  cases  of  towage,  11. 

in  questions  of  title  and  possession  of  ships,  32. 
not  as  extensive  as  in  continental  courts,  2. 
in  cases  of  seamen's  wages,  231,  232. 
in  maritime  liens,  1. 
have  no  general  equity  jurisdiction,  265,  281. 
have  no  jurisdiction  in  accounts  between  part-owners,  29. 
District  Courts  as,  2. 

decisions  of,  in  collateral  actions,  conclusive  as  to  character  of  vessel,  2. 
libellant  in,  not  liable  for  trespass,  on  dismissal,  2. 
decisions  of,  cannot  be  impeached  collaterally,  2. 
in  Great'Britain  as  authority,  3. 
colonial,  as  authority,  3. 
who  may  sue  in,  19. 

ADMIRALTY  LAW, 

sources  of,  26. 
ADVANCES, 

third  parties  makmg,  of  seamen's  wages  have  seamen's  lien,  except  owner, 
239. 


442  INDEX. 

ADVANCES,  —  continued. 

deduction  of,  out  of  shares  of  salvage,  163. 

for  supplies,  195. 

when,  take  priority  over  mortgages,  196. 
ADVICE, 

"when  a  salvage  service,  43, 
ArriDAVITS, 

to  be  used  in  Supreme  Court  as  further  proof,  270.         . 

to  obtain  order  to  examine  witness,  434. 
ATFKEIGHTMENT.    See  Bill  of  Lading  ;  Fkeight. 

contract  of,  27. 

form  of  libel  in  contracts  of,  No.  7,  p.  362. 
AGENT, 

authority  of,  in  stipulation,  255. 

where  claim  is  put  in  by,  Admiralty  Rule  26,  p.  326. 

form  of  oath  required  of,  on  putting  in  claim,  416. 
AGREEMENT.    See  Abandonment  •  Contbact  ;  Salvage  ;  Seamen  ;  Tug. 

to  salve  for  fixed  sum.  111. 

salvors  bound  by,  11 1. 

need  not  be  in  writing,  112. 

must  be  clearly  defined,  112. 

effect  of  value  of  cargo  upon,  112. 

set  aside  for  fraud,  113. 

set  aside  for  exorbitance  of  amount,  114, 124, 154. 

set  aside,  when  for  salvage  of  ship  alone,  120,  175, 

effect  of  concealment  upon,  112. 

binding  upon  parties  to,  only,  121, 122. 

master  can  bind  owner  by,  113. 

not  affected  by  hardness  of  bargain,  when,  122, 124. 

effect  of  change  of  weather  upon,  122. 

abandonment  of,  123. 

payment  of  agreed  amount  into  court,  under,  123. 

prior  lien-holders  not  concluded,  186. 

void,  when,  155-162.     (See  U.  S.  Rev.  Stat.  4535.) 

when  binding  on  person  with  notice  of  it,  121, 122. 

onus  of  proof  of,  123. 

of  salvors  to  refer  no  bar  to  suit,  248. 

unfair,  towards  salvors  set  aside,  121. 

for  apportionment,  binding  when  equitable,  154. 

for  apportionment,  set  aside  if  inequitable,  154. 
AGROUND, 

floating  a  vessel  aground,  45. 
AH  HOHN  ET  AL.  V.  THE  STEAMSHIP  METAPEDIA, 

in  construction  of  the  statute  of  June  7,  1872,  232. 
ALIENS, 

admiralty  has  jurisdiction  over,  when,  22. 


INDEX.  443 

ALLEGATA  ET  PROBATA, 
decree  must  be  secundum,  258. 

ALLEGATIONS, 

not  denied  or  admitted,  mast  be  proved.    See  Clarke  et  al.  v.  The  Brig 

Dodge  Healy  &  Cai^o,  4  Washington's  C.  C.  R.  651. 
in  pleadings,  parties  bound  by,  258. 
new  in  court  above,  297. 
restricted  by  probata,  258. 

AMENDMENTS.    See  Appeal  ;  Practicb. 

to  the  pleadings,  258  ;  Admiralty  Rule  24,  p.  325. 

AMERICAN  LAW, 

as  to  salvage  services  by  British  war-vessels  and  seamen,  74. 
as  to  success  in  salvage,  39. 

AMOUNT.    See  Salvage. 

in  salvage,  principles  regulating,  87  et  teq. 

of  salvage  to  be  awarded,  in  discretion  of  court,  87-89, 171,  271. 

liberal,  given,  87-89. 

no  strict  rule  can  be  laid  down  for,  in  salvage,  87. 

American  decisions  upon,  310. 

of  salvage  award,  increased  as  incentive  and  premium,  89. 

effect  of  subsequent  storms  upon,  93. 

degree  of  peril  to  be  taken  into  account  in  fixing,  93. 

liberality  of,  in  life  salvage,  49,  169. 

where  life  and  property,  both  saved,  93. 

for  salvage  of  passenger  steamers,  93,  128,  129. 

for  salvage  by  steamers,  94,  128, 129,  149,  152. 

for  salvage  by  passenger  ships,  98,  149. 

for  salvage  service  rendered  ships-of-war,  94. 

of  compensation  for  damage  to  salving  vessel,  149. 

tendered  by  owner  to  be  set  out  in  petition,  123. 

of  compensation  for  loss  of  fishing,  151. 

on  account  of  remoteness  of  damage,  100. 

as  affected  by  insurance  being  imperilled  by  deviation,  49,  101-103. 

a  moiety,  no  rule  as  to  giving,  90. 

a  moiety,  rarely  given,  except  when,  90. 

a  moiety,  instances  where  given,  90. 

a  moiety,  when  more  than  justified,  90. 

M  regulated  by  proportion  of  property,  106. 

two-thirds  of  amount  of  salvage  proceeds  allowed,  90. 

when  to  be  computed,  106-107. 

whole  amount  allowed,  when,  90,  91,  104. 

where  freight  saved  at  intermediate  port,  106. 

in  salvage  award,  tendency  now  to  lower,  128. 

appraisement  of  property  binds,  111. 

payment  of  unappealable  claims  out  of  appealable,  in  registry,  289. 

when  agreement  for  fixed  sum.  111. 


444  INDEX. 

AMOUNT,  —  continued. 

effect  of  miscouduct  on,  171,  179. 

unwillingness  of  court  to  disturb,  310,  314. 

decisions  in  questions  of,  311. 

cases  in  which  Court  of  Appeal  have  altered,  311-315. 
ANCHOR, 

furnishing,  to  distressed  vessel,  45. 

finder  of,  may  hold  till  salvage  paid,  187. 
ANSWER, 

must  be  verified  under  oath,  269 ;  Admiralty  Rules  23,  27,  pp.  324,  326. 

sufficiency  of,  254. 

when  to  be  filed,  256. 

precedents  of  forms  Nos.  43-47,  pp.  416,  417,  and  Admiralty  Rule  27, 
p.  326. 

libellant  may  except  to,  258  ;  Admiralty  Rule  28,  p.  326. 

what  defendant  may  object  to  by,  256,  Admiralty  Rule  31,  p.  327. 

to  interrogatories,  269  ;  Admiralty  Rules  27-33,  pp.  326-328. 

requisites  of,  256;  Admiralty  Rule  27,  p.  326. 

requisites  of,  may  be  dispensed  with,  when ;  Admiralty  Rule  49,  p.  332, 

when  sum  in  dispute  does  not  exceed  $50,  p.  332. 

defendant  may  be  compelled  to  make  further,  269 ;  Admiralty  Rule  30, 
p.  327. 

interrogatories  may  be  propounded  in.  Admiralty  Rule  32,  p.  327. 

supplemental,  258. 
APPAREL, 

ship's,  within  admiralty  jurisdiction,  19. 
APPEAL.    See  Decree. 

as  to  question  of  amount  discouraged,  310. 

cases  in  which  Court  of  Appeal  have  altered  amount  awarded,  311-315. 

when  matter  in  dispute  exceeds  fifty  dollars,  U.  S.  Rev.  Stat.  631,  p.  344. 

from  District  Court  to  Circuit  Court,  when  to  be  made,  295  j  Admiralty 
Rule  45,  p.  331. 

to  authorize,  from  Circuit  Court  to  Supreme   Court,  matter  in  dispute 
must  exceed  $5,000,  pp.  25,  278,  296,  306. 

to  authorize,  to  Circuit  Court,  matter  in  dispute  must  exceed  ^50,  pp.  296, 
297. 

only  from  final  decree,  295,  296,  308  ;  U.  S.  Rev.  Stat.  631,  p.  344. 

neglect  to  enter,  on  minutes  does  not  invalidate,  305. 

wliat  must  be  transmitted  from  Circuit  Court  to  Supreme  Court  on,  304. 

in  cases  of  joinder  of  distinct  causes  of  action,  295, 

in  cases  of  joinder  of  various  parties,  295. 

proceeds  to  follow,  into  Circuit  Court,  297-299. 

takes  stipulation  into  Circuit  Court,  298. 

proceeds  continue  in  Circuit  Court  pending,  300, 

decree  concludes  parties  omitting  to,  301,  308. 

does  not  lie  on  injunction,  296. 

not  encouraged  in  matters  of  discretion,  302. 


INDEX.  445 

APPEAL  —  eoHtinued. 

will  not  lie  on  decree  by  default,  296. 

note  for  services  produced  in  District  Coort  should  appear  on,  299. 

trial  in  Circuit  Court  on,  is  de  novo,  297,  315. 

amendments  and  new  allegations  and  proofs  may  be  made  in  Circuit 
Court,  297. 

rehearing  is  not  a  subject  of,  296. 

security  when  to  be  given  on,  304. 

cases  can  be  carried  to  Supreme  Court  only  by,  307. 

discharge  after,  of  persons  having  funds  in  custody,  a  nullity,  298. 

if  appellant  deserts,  what,  302. 

if  libellant  fails  to  prosecute,  what,  302. 

as  to  practice  in  Supreme  Court  on,  Admiralty  Rule  3,  p.  318,  and  8.  0. 
Rules  8  and  9,  p.  339. 

allowance  made  for  surprise  or  misapprehension,  305. 

as  to  finding  facts  on,  309,  316;  Act  of  1875,  p.  353,  354. 

doubtful  if  two  parties  can  bring,  where,  307. 

from  part  of  a  decree  brings  up  the  whole,  298,  303. 

suspends  decree  below  and  prevents  its  execution,  315. 

refused  by  District  Court  will  be  entered  by  Circuit  Court,  when,  305. 

considered  waived,  when,  305. 

will  be  dismissed,  when,  305. 

when  the  court  below  errs  in  executing  a  mandate  of  the  Supreme  Court, 
307. 

to  Supreme  Court  from  District  Court  not  acting  as  Circuit  Court,  307. 

within  what  time,  and  when,  must  be  brought,  302,  304-307. 

may  be  taken  either  viva  voce  or  in  writing,  304. 

what  is  to  be  deemed  amount  in  dispute  in,  296,  354. 

district  judge  sitting  as  circuit  judge  may  allow,  307. 

on  question  of  costs  not  allowed,  285. 

oral  evidence  in  District  Court,  how  used  on,  Admiralty  Rule  50,  p.  333. 

in  case  of  transfer,  on  account  of  recusation,  &c.,  307. 
APPEARANCE, 

who  may  make,  247. 

of  appellant,  when  to  be  entered.    (See  S.  C.  Rule  31.) 
APPORTIONMENT.     See  Militakt  Sjo-vage. 

expenses  of  owner  deducted  before,  150. 

between  different  sets  of  salvors,  85. 

by  admiralty  court,  discretionary,  136. 

by  parties  appointed  by  court,  conclusive,  141. 

delay,  effect  of,  on,  141,  164. 

when  to  be  applied  for,  141,  164. 

generally  referred  to  commissioner,  136. 

no  action  at  common  law  for  salvage,  138. 

in  proportion  to  wages,  136. 

principles  of,  104,  140. 

for  greater  work,  larger  share  of,  137,  140. 


446  INDEX. 

APPORTIONMENT,  —  continued. 
to  masters  for  salvage,  137. 
to  mates  for  salvage,  138. 
diminution  of,  for  misconduct,  141. 
effects  of  general  misconduct  on,  141. 
forfeiture  of,  for  embezzlement,  141. 
to  passenger  salvors,  142. 
to  part  of  crew  not  engaged  in  salving,  142. 
effects  of  refusal  to  assist  in  salvage,  on,  143. 
among  public  servants,  73. 

among  owner  and  crew,  136, 144-148,  150-152, 161. 
agreement  for,  when  binding,  154, 
set  off  against  claim  for,  163. 
deduction  of  advances  out  of,  163. 
of  damages  in  collision,  229. 

of  salvage  award  among  the  parties  by  the  court,  135 
of  salvage  among  navy  officers  and  crew,  141. 
of  damages  in  joint  collision,  229. 

APPRAISEMENT, 

of  property  under  arrest.  111. 

of  property  saved,  costs  of,  284. 

where  unnecessary.  111. 

finality  of.  111. 

when  and  how  made.  Admiralty  Rule  11,  p.  320. 

APPRENTICES, 
not  seamen,  232. 

claim  of  master  or  owner  to  salvage  shares  of,  139, 152. 
when  to  share  in  salvage  award,  153. 
to  share  in  proportion  to  their  wages,  136. 

APPURTENANCES, 

may  be  ordered  into  custody  of  proper  officer,  when.  Admiralty  Rule  8,  p.  319. 

ARBITRATION, 

when  case  may  be  submitted  to,  33. 

ARMY  AND  NAVY, 

conjunctive  capture.    See  Militabt  ;  Navt;  Peize. 

ARREST.    See  Process;  Warrant. 

in  suits  in  personam,  Admiralty  Rules  2,  3,  7,  PP-  317-319. 
seizure  under  warrant  of,  Admiralty  Rule  9,  p.  3J19. 
form  of  libel,  with  prayer  for  warrant  of,  389. 
of  vessel,  after  voyage  commences,  250. 
mesne  process  by,  Admiralty  Rule  2,  p.  317. 

ARTIFICIAL  CANAL, 

within  admiralty  jurisdiction,  9, 

ASSAULT  AND  BATTERY, 

parties  in  cases  of,  Admiralty  Rule  16,  p.  322. 


INDEX.  447 

ASSAULT  AND  BATTERY,  — eonitHued. 
form  of  libel  for,  No.  26,  p.  394. 
jurisdiction  of  admiralty  in,  29. 
right  of  seamen  to  damages  for,  236. 

ASSETS, 

marshalling  of,  2S0. 

ASSIGNMENT, 

by  crew,  of  wages,  void,  239. 

ASSISTANCE, 

must  have  been  actually  rendered,  39. 
of  strangers  in  salvage,  41. 

ASSOCIATED  VESSELS, 
salvage  by,  61,  140. 
may  claim  salvage,  when,  61,  140. 

ATTACHMENT.     See  Garnishee. 

on  goods  and  chattels,  on  credits  and  effects,  Admiralty  Rule  4,  p.  318. 

mesne  process  by.  Admiralty  Rule  2,  p.  317. 

foreign,  mesne  process  by.  Admiralty  Rule  2,  p.  317. 

t»  rem,  Admiralty  Rule  9,  p.  319. 

of  property  in  hands  of  garnishee.  Admiralty  Rule  2,  p.  317. 

how  dissolved.  Admiralty  Rule  4,  p.  318. 

foreign,  procedure  in  cases  of,  Admiralty  Rule  37,  p.  329. 

form  of  libel,  with  clause  of,  389. 

court  may  obtain  jurisdiction  by,  2. 

may  be  by  notice  and  monition  or  by  actual  levy,  23, 

ATTORNEYS  AND  COUNSELLORS.    See  Proctobs. 
AUTHORITY.    See  Master. 

of  practice  in  colonial  courts  of  admiralty,  3. 

of  practice  in  British  courts  of  admiralty,  3. 
AVERAGE.     See  General  Average. 

particular,  "  is  the  same  as  a  partial  loss." — Abbott  on  Shipping,  p.  474,  n,, 
Boston,  1850. 

AWARD, 

in  cases  of  derelict,  81,  82,  103. 
in  salvage,  who  to  share,  140. 
owners  to  share,  136,  144-148, 150-152. 
submission  to,  33. 

B. 

BAD  FAITH, 

diminution  of  salvage  in  consequence  of,  174. 
American  law  as  to,  174. 

BAD  SEAMANSHIP, 

renders  vessel  liable  for  a  collision,  S23. 

BAGGAGE.    See  Passengers. 


448  INDEX. 

BAIL.    See  Stipitlation. 

release  of  vessel  on,  320. 

release  of  property  on,  255,  422. 

amount  of,  255. 

mode  of  putting  in,  Admiralty  Rule  5,  p.  318. 

execution  of  bond  in.  Admiralty  Rule  5,  p.  318. 

payment  of  money  instead  of.  Admiralty  Rules  10,  11,  p.  320. 

penalty  for  delaying  release,  181-185. 

in  suits  in  personam,  Admiralty  Rules  3,  6,  pp.  318,  319. 

■when  reduced.  Admiralty  Rule  6,  p.  319. 

bonds,  wben  summary  execution  issued  upon,  Admiralty  Rule  3,  p.  318. 

when  new  sureties  required  on,  Admiralty  Rule  6,  p.  319. 

form  of  order  for,  425. 

form  of  stipulation  for,  425. 
BAILEE, 

claim,  how  verified  by.  Admiralty  Rule  26,  p.  326. 
BANKS, 

as  to  money  in  the  registry.  Admiralty  Rule  42,  p.  330. 
BAR, 

to  salvage  claim,  171-179. 
BARGE, 

coal,  11. 

adrift,  subject  of  salvage  service,  15,  48. 
BAR^KEEPER, 

may  be  salvor,  68. 
BAYS.     See  JuRisDicTioif. 

admiralty  jurisdiction  embraces,  6. 
BELLIGERENT.    See  Militabt  Salvage. 
BILL  OF  EXCHANGE, 

not  liable  to  salvage,  170. 
BILL  OF  LADING, 

included  in  admiralty  jurisdiction,  19,  27. 

where  no  actual  delivery,  195,  273. 

evidence  as  to,  267. 

a  maritime  contract,  27. 

cannot  be  varied  by  parol  evidence,  267. 

form  of  libel  on,  No.  28,  p.  398. 
BOAT-OWNER, 

as  salvor,  62. 
BOATS.     See  Appurtenances. 

canal,  10. 

coal,  10,  14. 

ferry,  10, 14, 

market,  12. 
BOATSWAIN.    See  Seamen. 

is  deemed  a  mariner,  234. 


INDEX.  449 

BODY  OF  A  COUNTY.    See  Jubisdiction. 

BOILERS, 

subject  to  salvage  senrice,  when,  54. 

BOND.    See  Stipulation. 
how  given,  255. 

for  costs,  form  of,  No.  48,  p.  418. 
in  appeals,  297,  298. 
in  bottomry,  28. 
in  respondentia,  28. 

form  of,  to  marshal,  on  arrest.  No.  63,  p.  425. 
in  vacation,  255.     (See  also  U.  S.  Rev.  Stat.  940.) 
for  stay  of  execution,  255. 

BONDING, 

of  property,  Admiralty  Rules  10  and  11,  p.  320. 

BORROWED  MONEY, 
upon  ships,  19. 
for  necessaries,  196. 

BOTTOMRY, 

and  respondentia  bonds,  within  admiralty  jurisdiction,  28. 

suits  on,  must  be  in  rem,  22 ;  Admiralty  Rule  18,  p.  322. 

parties  in  cases  of.  Admiralty  Rule  18,  p.  322. 

in  suits  for,  certain  property  to  be  brought  into  court,  Admiralty  Rule  38, 

p.  329. 
form  of  libel  for.  No.  10,  p.  372. 

BRIDGE.    See  C!olusion. 

maritime  lien  cannot  exist  upon,  15. 

BRITISH  COURTS, 
as  authority,  3. 

BRITISH  VESSELS  AND  OFFICERS, 
as  salvors,  73. 

BUILDER, 

of  ships,  services  not  maritime,  whether,  14, 199,  200. 
has  a  common-law  lien,  199. 

BULLION, 

box  of,  subject  of  salvage  service,  15. 

when  part  of  cargo  consists  of,  contribution,  165-168. 

in  trunk  of  passenger,  liable  for  salvage,  171. 
BURDEN  OF  PROOF.    See  Evibence  ;  Onus  Peobajtoi. 

to  establish  fault,  224. 

on  whom  it  rests,  224. 


CABIN-BOY, 

is  deemed  a  seaman,  234. 


29 


450  INDEX. 

CANAL, 

artificial,  9. 

boat,  10,  14  ;  'when  not  subject  to  libel,  240. 
CAPTURE.    See  Militahy  Salvage  ;  Pkize. 

dissolves  connection  between  seamen  and  vessel,  55. 

jure  belli,  27. 

court  can  decide  on  validity  of,  251. 
CARGO, 

subject  of  salvage,  19,  42,  45. 

subject  of  admiralty  jurisdiction,  19. 

owners  of,  claiming  salvage,  62,  63,  139. 

transshipment  of,  42. 

liable  for  freight,  205. 

ashore,  salvage  by  saving,  45. 

damage  to,  in  collision  cases,  229. 

form  of  libel  for  possession  of.  No.  34,  p.  409. 

false  representations  of  value  of,  will  not  render  salvage  agreement  void, 
112. 
CARPENTER, 

ship's,  a  seaman,  234. 
CARRIAGE  OF  GOODS.    See  Apfreightment. 
CARRIAGE   OF  PASSENGERS, 

admiralty  has  jurisdiction  over  contracts  for,  33. 
CARRIER.     See  Liens. 

jurisdiction  over,  34. 
CHAMBERMAID, 

a  seaman,  234. 
CHANCERY, 

master  in,  report  by,  not  reviewed  on  questions  of  fact,  309. 
CHANGE  OF  WEATHER, 

effect  of,  on  towage  contract,  68,  70. 

effect  of,  on  salvage  agreement,  122. 
CHARTERER.     See  Hirer. 

CHARTER-PARTY.    See  Jurisdiction. 

form  of  libel  on,  No.  29,  p.  396. 

when  damages  cannot  be  enforced  in  rem,  under,  195. 

within  admiralty  jurisdiction,  19. 

gives  no  lien  unless  cargo  laden  under  it,  190. 
CIRCUIT  COURT.    See  Appeal;  District  Court;  Jurisdiction;  Rules 
IN  Admiralty  ;  Supreme  Court. 

to  be  regulated  by  the  Admiralty  Rules  of  the  Supreme  Court,  Admiralty 
Rule  47,  p.  322. 

to  regulate  its  own  practice,  wben,  Admiralty  Rule  46,  p.  322. 

appeal  to,  from  District  Court,  24. 

appeal  from,  to  the  Supreme  Court,  25. 

further  proof  in,  how  taken.  Admiralty  Rule  50,  p.  333. 


INDEX.  461 

CIRCUIT  COURT,  —  eontinufd. 

oral  evidence  taken  down  by  clerk  of  District  Court,  may  be  used  on  ap- 
peal to.  Admiralty  Rule  51,  p.  333. 

tuperiedeat  bond  in,  to  be  taken  in  what  amount.     (See  S.  C.  Rule  32.) 

decree  of,  should  be  complete  within  itself,  304. 

decree  of  Supreme  Court  is  executed  in,  307. 

executes  its  own  decree,  279. 

may  remand  to  the  District  Court,  303. 

original  jurisdiction  of,  shall  not  affirm  a  decree  in  part,  and  dismiss  the 
appeal,  304;. 

objections  to  jurisdiction  of,  25. 
CITIZENS'  BANK,  TURNBULL,  MARTIN,  &  CO.  r.,  Note,  xxxiii. 
CITIZENSHIP, 

not  necessary  to  give  jurisdiction,  4. 

CIVIL  LAW, 

maritime  liens  derived  from,  189. 

CLAIM, 

of  owner  of  ship-yard,  15. 

of  the  property,  255. 

requirements  of.  Admiralty  Rules  5,  26,  pp.  319,  326. 

who  may,  254. 

how  verified,  255  ;  Admiralty  Rule  26,  p.  326. 

when  put  in,  stipulation  for  costs  and  expenses  to  be  filed.  Admiralty 
Rule  26,  p.  326. 

form  of,  Nos.  43-45,  pp.  416,  417. 

duty  of  master  to  make,  113. 
CLAIMANT, 

when  perishable  property  delivered  to,  255 ;  Admiralty  Rule  10,  p.  320. 

must  verify  claim  on  oath,  269 ;  Admiralty  Rule  26,  p.  326. 

when  ship  delivered  to,  or  sold,  255  ;  Admiralty  Rule  11,  p.  320. 

stipulation  by,  for  costs.  Admiralty  Rule  26,  p.  326. 
CLERK, 

when  can  issue  process,  255. 

fees  of.     (See  U.  S.  Rev.  Stat.  828.) 

of  the  District  Court,  how  to  make  appeal  record.  Admiralty  Rule  52  and 
Amendments  thereto,  pp.  334,  335. 

powers  and  duties  of  the  District  Court  and  Circuit  Court,  in  admiralty. 
(See  U.  S.  Rev.  Stet.  672,  748,  799,  947,  4644,  5000.) 

steamboat,  a  seaman,  234. 
CLOTHING, 

of  master  and  crew  not  liable  to  salvage,  171. 

COAL-BARGE, 

as  to  jurisdiction  over,  11. 

may  be  subject  of  salvage  service,  16. 

COLLATERAL, 

persons  whose  interest  is  merely,  cannot  intervene,  247 


452  INDEX. 

COLLECTOR, 

or  other  revenue  officer  may  be  salvor,  73. 
COLLISION.     See  Lights  ;  Lookout  ;  RESTiTtrTio  in  Integkttm  ;  Rttles 
OF  Navigation  ;  Salvage  ;  Signals  ;  Steameb,  ;  Vessel  at  Anchoe. 

between  salving  and  salved  vessels,  43,  44. 

definition  of,  29,  206. 

effect  of  leaving  vessel  after,  44, 

salvage  in  cases  of,  43,  44. 

life-salvage  in  cases  of,  9. 

seaman  left  on  board  after,  when  a  salvor,  56. 

parties  in  suits  for  damage  by.  Admiralty  Rule  15,  p.  322. 

form  of  libel  in  case  of.  No.  9,  p.  367- 

with  bridge,  15. 

with  skiff.  Miller  v.  The  W.  G.  Hewes.     (See  1  Woods,  363.) 

successful  exertions  to  avoid,  not  salvage  service,  44. 

duty  of  steamers  in  order  to  avoid,  208. 

steamer  crossing  another  steamer,  220. 

rights  in  action  for,  by  what  law  regulated,  206,  207. 

precautions  to  avoid,  207. 

rules  providing  against,  not  inflexible,  220,  221. 

error  in  extremis,  not  a  fault,  221,  222. 

evidence  of  negligence  in,  222,  223. 

what  constitutes  a  fault  in,  223. 

inevitable  accident  in,  223. 

contributory  negligence  in,  216,  224. 

burden  of  proof  of  fault  in,  224. 

liability  for  damages  caused  by,  224  ;  Admiralty  Rule  54,  p.  336. 

liability  for  damages  when  pilot  on  board,  225, 

obstructions,  efi"ect  of,  as  causing,  225-227. 

limitation  of  liability  in,  227;  Admiralty  Rule  54,  p.  336.     (See  also 
U.  S.  Rev.  Stat.  4283.) 

remedy  in,  227. 

between  foreign  vessels,  admiralty  jurisdiction  extends  to,  4. 

who  may  be  parties  in  cases  of,  206 ;  Admiralty  Rule  59,  p.  338. 

rule  of  damages  in,  227. 

allowance  for  repairs  after,  228. 

allowance  for  demurrage  in,  228. 

allowance  for  interest  on  damages  in,  278,  279. 

allowance  for  loss  of,  or  damage  to,  cargo,  229. 

loss  caused  by,  when  divided,  229. 

apportionment  of  damages  in,  229. 

lien  for  damages  in,  230. 

sail-vessel  to  hold  her  course,  219. 

duty  imposed  on  rear  boat,  220. 

inscrutable  fault  in,  229. 

duty  of  overtaking  vessel,  220. 
COLONIAL  COURTS, 

authority  of  practice  in,  20. 


INDEX.  468 

COMMENCEMENT, 

of  suit  ia  admiralty,  253. 
COMMERCIAL  CODES, 

of  Belgium,  of  Bnuil,  of  Cliili,  of  France,  of  Germany,  of  Italy,  of  Portu- 
gal,  of  Spaiu,  201. 

COMMISSION, 

of  judges  iu  admiralty,  18,  20. 

to  take  answer  to  interrogatories,  when  awarded,  Admiralty  Rule  33, 
p.  328. 
COMMISSIONERS, 

court  may  refer  to.  Admiralty  Rule  4i,  p.  331. 

powers  and  duties  of,  Admiralty  Rules  5,  35,  pp.  318,  329. 

powers  of,  iu  references.  Admiralty  Rule  4:i,  p.  331. 

have  powers  of  masters  iu  chauccry,  Admiralty  Rule  44,  p.  331. 

report  of,  cannot  be  reviewed  on  appeal,  unless,  301. 

COMxMON  CARRIER.    See  Jubisdictiok. 

COMMUNICATING  WITH  SALVING  VESSEL, 

when  a  salvage  service,  43. 
COMPENSATION, 

general  principles  of,  40,  41. 

for  salvage  services,  42. 

to  a  seaman  by  way  of  salvage,  44,  55-57. 

on  salvage,  what  essential  to  right  to,  37. 

on  salvage,  allowed  to  owners,  59-65. 

for  misconduct,  forfeiture  of,  171-174. 

parties  may  contract  for,  111-113. 

recovery  of,  246. 

for  detention  in  case  of  collision,  228. 

COMPULSORY  PILOTAGE, 

liability  as  to,  statute  creating,  construed,  225. 

CONCEALMENT. 

of  condition  of  vessel,  112. 

effect  of,  on  towing  contract,  71. 

effect  of,  on  agreement  for  fixed  sum,  112. 

by  master  of  property  saved,  will  not  affect  right  of  crew  to  salvage,  177. 
CONDEMNATION, 

as  prize,  when  justified,  51,  52. 
CONSIGNEE, 

authority  of,  in  relation  to  stipulation,  255. 

claim,  how  verified  by,  Admiralty  Rule  26,  p.  326. 

CONSOLIDATION, 

of  action,  248. 

costs  in,  248. 
CONSORT, 

has  an  equitable  lien,  61. 


454  INDEX. 

CONSOB.TSHIP.    See  Jueisdiction. 
no  salvage  in,  61,  140. 

CONSUL, 

three  months'  extra  wages  for  seamen  to  be  paid  to,  when,  237. 
foreign,  may  petition  on  behalf  of  absent  citizens  of  his  country,  249. 

CONTRACT.    See  Agkeement  ;  Seamen. 
maritime,  9. 
for  services,  111-114. 

for  exorbitant  salvage  compensation  will  not  be  enforced,  88. 
preliminary,  9. 
as  to  bar,  123,  128. 
executed,  9. 
unexecuted,  9. 

jurisdiction  of,  depends  on  subject,  not  on  locality,  9. 
of  affreightment,  27. 
executory,  9. 

CONTRIBUTION, 

between  ship  and  cargo,  139,  165,  169. 

principles  regulating,  87  et  seq. 

towards  expenses  of  salvage  suit,  169. 

when  part  of  cargo  salved  is  bullion,  165-168. 

average,  169. 

United  States  mails  not  liable  to,  for  salvage,  Schooner  Merchant.     (See 
2  Parsons,  S.  &  A.  303 ;  Marvin,  132.) 
CONTRIBUTORY  NEGLIGENCE, 

in  collision,  224. 
CONTROVERSIES, 

between  foreigners,  22. 
CONTUMACY.    See  Default. 
CONTUMACY  AND  DEFAULT,  Admiralty  Rule  39,  p.  330. 

COOK, 

a  seaman,  234. 

lien  for  wages,  239. 
COOPER, 

a  seaman,  234. 

admiralty  has  jurisdiction  of  contract  of,  when,  32. 

CORPORATIONS, 
may  be  salvors,  65. 
as  salvors,  encouraged  by  liberal  reward,  94. 

CO-SALVORS, 

remedy  of,  164. 

interests  of,  not  joint  but  several,  164,  248. 
COSTS  AND  PEES.     See  Fees  ;  Tendee. 

as  expenses,  288,  292. 

where  libellant  decreed  to  pay,  284. 


INDEX.  455 

COSTS  AND  T'EES  —  eonlinued. 

in  another  district,  291. 

when  appellee  entitled  to,  2S4. 

when  not  awarded,  2S4i. 

of  partial  success,  2S4. 

when  appellant  entitled  to,  2S4. 

may  be  charged  on  the  property  saved,  284. 

in  case  of  tender  of  amount,  289,  290. 

where  neither  party  niay  recover,  284,  285,  290,  292. 

in  discretion  of  court,  287. 

when  claimant  entitled  to,  285. 

generally  follow  result,  287. 

dependent  oii  amount  of  recovery,  285. 

of  clerk.     (See  U.  S.  Rev.  Stat.  828.) 

allowance  or  non-allowance  of,  not  subject  of  appeal,  285. 

of  marshal.     (See  U.  S.  Rev.  Stat.  829.) 
'  on  several  libels  that  might  have  been  joined,  285. 

indulgence  of  salvors  as  to,  288. 

when  proctor  required  to  satisfy,  286. 

statutory,  286. 

when  allowed  in  action  for  seamen's  wages,  brought  before  expiration  of 
ten  days,  238. 

when  the  court  may  compel  defendant  to  give  stipulation  for,  291 ;  Ad- 
miralty Rule  25,  p.  325. 

stipulation  for,  to  be  filed  when  claim  is  put  in,  291 ;  Admiralty  Rule  26, 
p.  326. 

when  defendant  may  be  ordered  to  pay,  291 ;  Admiralty  Rule  28,  p.  326. 

interveuor  to  give  stipulation  for,  291 ;  Admiralty  Rule  34,  p.  328. 

on  allowance  of  exception  to  answer,  291 ;  Admiralty  Rule  36,  p.  329. 

refusal  of  a  fair  tender  exposes  party  to  loss  of,  291. 

on  dismissal,  286,  291 ;  S.  C.  Rule  24,  p.  341. 

on  affirmance,  291 ;  S.  C.  Rule  24,  p.  341. 

as  to  taxation  of,  291. 

on  reversal,  285,  291 ;  S.  C.  Rule  24,  p.  341. 

on  cross-libel,  291 ;  Admiralty  Rule  53,  p.  335. 

United  States  exempt  from,  291 ;  S.  C.  Rule  24,  p.  341.     \ 

seamen  not  compelled  to  give  security  for,  when,  288. 

nomine  expensarum,  a  fixed  sum  allowed  instead  of,  when,  288. 

to  be  inserted  in  mandate,  when,  S.  C.  Rule  24  (§  5),  p.  342. 

interest  on,  286. 

of  proctors,  292,  293. 

where  case  is  false  or  fraudulent,  287. 

form  of  stipulation  for.  No.  48,  p.  418. 

where  salvors  guilty  of  misconduct,  287. 
CO-TENANT.    See  Pabt-Owxek;  Ship. 

COUNSEL  FEES, 

when  allowed  as  costs,  292. 


456  INDEX. 

COUNTERCLAIM, 

cross-libel  may  be  filed  on,  256. 

COURT.     See  Admiralty  Coukts;  Appeal  ;  Circuit  Coukt;  Distkict 

COUKT  ;    SUPUEME   CoUKT. 

may  make  rules  of  court,  when.  Admiralty  Rule  46,  p.  332. 
CREW, 

contribute  to  salvage  in  wlialing  and  fishing  voyages,  170. 

when  may  be  salvors  of  their  own  ship,  55. 

not  bound  by  salvage  agreement  when  not  parties  to  it,  113,  121,  ]22. 

when  salvage  award  decreed  in  favor  of  part  of,  142, 143. 

supplying,  in  salvage,  44. 

CRIMES  AND  DEFENCES.     See  Assault  axd  Battekt. 

Circuit  Courts  and  District  Courts  have  jurisdiction  of,  30,  31. 

practice  on,  same  as  in  common-law  courts,  2G5. 
CROSS-AlTEAL.     See  Supreme  Court  Rule  22. 

must  be  prosecuted  Uke  other  appeals,  302. 

where  defendant  appeals,  if  libellant  objects  to  decree,  he  must  come  in 
by,  301. 
CROSS-LIBEL, 

may  be  filed  on  any  counterclaim,  256;  Admiralty  Rule  53,  pp.  257,  335. 

effect  of,  256. 

when,  cannot  be  sustained,  257. 

dismissal  of,  257. 
CUSTOM, 

effect  of  local,  as  to  seaman's  claim  for  salvage,  163,  251. 

authorizes  master  to  employ  vessel  and  crew  in  salvage  service,  123. 

evidence  as  to,  272. 
CUSTOM-HOUSE, 

duties  on  goods  should  be  paid  before  salvage  awarded,  170. 

CUSTODY, 

of  vessel,  181. 

salvors,  when  entitled  to,  182. 

D. 

DAMAGE, 

to  salving  vessel,  compensation  for,  149. 

remoteness  of,  100. 

loss  or,  sustained  by  salvors,  allowed  in  award,  99. 

or  detention  of  salving  vessel,  payments  in  respect  of,  allowed  in  award, 
100. 
DAMAGES, 

in  collision,  measure  of,  228. 

Circuit  Court  will  not  hastUy  disturb  decree  of  District  Court  for,  271. 

for  death,  32. 

assessment  of,  when  court  will  interfere  with,  271. 


INDEX.  457 

DANGER, 

apprehension  of,  an  ingredient  in  salvage,  38. 
imminent,  justifies  salvage,  39. 
imminent,  in  collision,  219. 
as  affecting  amount  of  salvage,  88,  89. 

DEATH, 

of  stipulator,  279. 

damages  for,  32. 
DECK  HANDS, 

are  deemed  seamen,  241. 

DECREE.     See  Admiralty  Rules  21,  40,  pp.  323,  330. 
must  be  secundum  allegata  et probata,  258. 
interlocutory,  296. 

of  District  Court,  how  Circuit  Court  may  deal  with,  279,  280,  303. 
final,  280,  281,  304. 

in  salvage  may  be  for  more  than  is  demanded,  89. 
new,  should  be  made  in  the  Circuit  Court,  280,  304. 
should  be  complete  within  itself,  280,  304. 
where  only  one,  of  two  in  fault,  is  libelled,  282. 
may  be  for  delivery  to  marshal,  when,  281. 
when,  for  total  loss  bars  claim,  282. 
priority  of,  282. 

when  rescinded,  281 ;  Admiralty  Rule  40,  p.  330. 
is  operative,  when,  305. 
against  both  defendants,  282. 
against  stipulators,  307. 

by  default  may  be  rescinded,  281 ;  Admiralty  Rule  40,  p.  330. 
appeal  from  part  of,  brings  up  the  whole,  278. 
enforcement  of,  Admiralty  Rules  3,  21,  pp.  318,  323. 
cannot,  in  an  action  in  rem,  be  for  more  than  appraised  value.  111. 
appealable  to  Circuit  Court,  when,  295. 

DEDIMUS  POTESTATEM.    See  Evidence. 

DEDUCTIONS.    See  Seamen. 
from  seamen's  wages,  240. 

DEFAULT, 

of  defendant,  256 ;  Admiralty  Rule  29,  p.  326. 

of  libellant,  Admiralty  Rule  39,  p.  330.  ^ 

when  rescinded.  Admiralty  Rule  40,  p.  330 
DEFINITION. 

of  salvage,  36,  37. 

of  collision,  206. 

of  inevitable  accident,  223. 

of  lien,  202. 

of  navigable  waters,  4,  5. 

of  home  port,  204. 

of  foreign  port,  204. 


458  INDEX. 

DELAY, 

of  suit  by  salvor  against  co-salvor,  164,  165, 

will  constitute  valid  defence,  when,  250. 

to  enforce  lien,  164. 

in  bringing  cause  to  hearing,  249. 

by  suitors  in  admiralty,  164. 

when  deemed  waiver,  249. 

DEMURRAGE, 

allowance  for,  228. 

DE  Noro, 

cause  in  appellate  court  is  heard,  297,  315. 

DEPARTURE, 

from  rules  of  navigation,  when  justified,  217. 

DEPOSITIONS.     See  Evidence. 

evidence  by,  Admiralty  Rules  49,  50,  pp.  332,  333. 

de  bene  esse,  U.  S.  Rev.  Stat.  863,  p.  346. 

notice  to  be  given,  U.  S.  Rev.  Stat.  863,  p.  346. 

witnesses  under,  may  be  compelled  to  appear,  U.  S.  Rev.  Stat.  863, 

p.  346. 
mode  of  taking,  de  bene  esse,  U.  S.  Rev.  Stat.  864,  p.  348. 
transmission  to  the  court  of,  de  bene  esse,  U.  S.  Rev.  Stat.  865,  p.  348. 
under  dedimus  potestatem  and  in  perpetuam  ret  memoriam,  U.  S.  Rev. 

Stat.  866,  p.  349. 
in  perpetuam  rei  memoriam,  when  admissible,  U.  S.  Rev.    Stat.  867, 

p.  349. 
under  dedimus  potestatem,  how  taken,  U.  S.  Rev.  Stat.  868,  p.  349. 
subpoena  duces  tecum  in,  under  dedimus  potestatem,  U.  S.  Rev.  Stat.  869, 

p.  350. 
witnesses  under  dedimus  potestatem  in,  attendance  of,  U.  S.  Rev.   Stat. 

870,  p.  351. 
under  letters  rogatory,  how  to  be  returned,  U.  S.  Rev.  Stat.  875,  p. 

351. 
form  of,  de  bene  esse,  436. 

DERELICT.    See  Detention  ;  Owneks;  Public  Peopertt  ;  Salvage. 
in  relation  to  different  sets  of  salvors,  11,  82. 
first  salvors  favored  in  case  of,  78,  82,  83. 
second  salvors  in,  82,  83. 
what  constitutes  legal,  78,  81. 

salvors  bound  to  avail  themselves  of  necessary  assistance  in,  83. 
temporary  leaving  does  not  constitute,  78. 
onus  of  proof  as  to  what  constitutes,  79. 

intention  at  time  of  abandonment  determines  question  of,  79-81. 
vessel  may  be,  though  in  sight  of  abandoners,  81. 
award  of  salvage  in  cases  of,  81,  82,  103. 

salvage  as  in  case  of,  where  abandonment  and  salvage  of  cargo  simulta- 
neous, 80, 


INDEX.  459 

DERELICT  —  continued. 

change  of  mind  and  return,  effect  of,  in,  79. 

effect  of  leaviug,  without  any  intentioa  either  way,  79. 

effect  of  drowning  of  crew  after  leaviug  vessel,  as  to,  80. 

when  leaving  vessel  iu  collision  constitutes,  79. 

vessel  abandoned  sine  animo  recuperandi,  as,  80. 

position  of  vessel,  evidence  of,  80. 

when  ship  or  goods  sunk  are,  80. 

bringing  into  port,  is  salvage  service,  45. 

reward  in  case  of,  91,  81,  82,  103. 

quasi,  what  constitutes,  80. 

liberal  compensation  in  case  of  quasi,  80. 

American  decisions  as  to,  80. 

rule  as  to  moiety  in,  91,  92. 

no  rule  now  as  to  awarding  moiety  in,  9L 

lost  iu  effort  to  salve,  181. 

instances  of  moiety  being  given  in,  90. 

one-third  to  three-fourths  allowed,  92. 

releasing  of,  183,  185. 

preservation  of,  180. 

detention  of,  by  salvors,  181,  185,  186. 

is  within  admiralty  jurisdiction,  19. 

DERRICK, 

on  a  pier,  injury  to,  admiralty  has  no  jurisdic^on  over,  21, 
when  may  be  subject  of  salvage,  11. 

DERRICK-BOAT, 

subject  of  salvage,  48. 

DESERTION, 

does  not  affect  seamen's  wages,  when,  237. 
DETENTION, 

of  property  by  salvors,  181, 183-185. 

common-law  lien  in,  182. 

of  vessel  when  not  derelict,  183. 

of  vessel  when  temporarily  abandoned,  182. 

when  salvors  entitled  to,  182. 

effect  of  releasing  from,  on  rights  of  salvors,  183,  185. 

damage  or,  of  salving  vessel,  payment  in  respect  of,  allowed  in  award, 
100. 

no  claim  for,  when,  181,  297. 

salvage  forfeited  for  improper,  ISi. 

DEVIATION, 

effect  of,  49, 101-103. 

what  is,  49,  103. 

when  delay  amounts  to,  49. 

when  justifiable,  103. 

as  affecting  salvage  award,  101-103. 


460  INDEX. 

DIFFERENT, 

sets  of  salvors,  claims  by,  42,  tl. 

DILIGENCE, 

governed  by  circumstances,  177. 

DIMINUTION, 

of  amount  of  salvage  award,  178. 

for  misconduct,  173. 

instances  of,  174- 

for  obtruding  services,  176. 

for  refusing  further  assistance,  83. 

in  consequence  of  injury  through  want  of  skill,  178. 

DIRECTIONS, 

as  to  mode  of  proof,  66. 

DISCHARGE.     See  Salvors  ;  Seamen. 
seamen  may  become  salvors  on,  55. 
of  seamen  in  foreign  port,  237. 
what  operates  as,  238. 
personal  action  lies  immediately  on,  238. 

costs  of  action  brought  immediately  on,  may  be  denied,  when,  238. 
of  property  on  delivery  bond,  255. 

DISCRETION, 

of  court  in  decreeing  salvage,  87-89,  171,  271. 
of  court  in  allowing  costs  in  salvage  cases,  287. 

DISMANTLED   STEAMBOAT,  15,  47. 

DISMISSAL, 

of  libel,  Admiralty  Rule  32,  p.  327. 

of  appeal,  when,  305. 

costs  on,  S.  C.  Rule  24,  p.  341. 
DISTRESS, 

essential  ingredient  in  salvage  service,  38. 

signal  of,  68. 

DISTRIBUTION.    See  Appobtionment. 

between  rival  salvors,  84-86. 
DISTRICT  COURT.    See  Admiralty  Courts  ;  Appeal  ;  Circuit  Court; 
Jurisdiction;  Prohibition;   Supreme  Court. 

is  a  court  of  record,  2. 

to  be  deemed  always  open,  345. 

jurisdiction  of,  1. 

decree  of,  cannot  be  impeached,  when,  2. 

jurisdiction  of,  exclusive,  when,  1,  2. 

as  court  of  admiralty,  2. 

may  be  prohibited.     (See  U.  S.  Rev.  Stat.  688.) 

practice  of,  regulated  by  Admiralty  Rules  of  Supreme  Court,  when.  Ad- 
miralty Rule  46,  p.  332. 

may  make  its  own  rules,  when,  Admiralty  Rule  46,  p.  332. 


INDEX.  461 

DIVER, 

salvage  award  to,  138. 
DIVESTMENT, 

of  lieus,  190,  200,  239. 
DOCK, 

stationary,  12. 

floating,  18. 
DOCKAGE.    See  Jubisdiction  ;  "Whakpage. 
DOCTRINE.    See  General  Avebage. 

of  general  average,  1G8-185. 
DOCUMENT.    See  Apostles. 

clerk  shall  certify  the  entire.  Admiralty  Rule  52,  sect.  2,  p.  335. 
DOMESTIC, 

vessels,  lien  on,  28, 193, 198,  and  Admiralty  Rule  12,  p.  321. 
DOMIXUS  LITIS, 

when  insurer  may  become,  303. 

DOUBLE  WAGES, 

when  allowed  to  seamen,  238  ;  and  see  U.  S.  Rev.  Stat  sect.  4529. 
DRIFTING  TIMBER.    See  Timbek. 
DRY  DOCK, 

jurisdiction  over,  9,  21. 

DURESS.    See  1  Brown's  Adm.  141,  544;  3  Liv.  Law  Mag.  586 ;  8  Law 

Rep.  N.  s.  94. 
DUTIES, 

of  crew  as  salvors,  beyond  their  obligations  as  seamen,  55. 

of  salvors,  180,  181. 

of  tugs  under  towage  contract,  69. 

of  tugs  terminated  by  vis  major,  69. 
DUTY, 

of  steamers  in  order  to  avoid  collision,  209. 

of  steamers  to  slacken  speed,  210. 

and  liability  of  tug  and  tow  as  to  navigation,  225. 


£. 

ELEVATOR, 

floating,  10. 
EMBEZZLEMENT, 

forfeiture  of  proportion  of  salvage  for,  176,  177. 

on  board  ship,  owners'  liability  for,  Admiralty  Rules  54,  58,  pp.  336,  338. 

on  board  what  vessels,  owners  not  liable  for.    (See  U.  S.  Rev.  Stat.  4289.) 

forfeiture  of  wages  for.    (See  U.  S.  Bev.  Stat.  4596,  par.  eighth.) 
ENEMY, 

capture  of  vessel  bv,  55. 

rescue  of  vessel  from,  46,  49.    (See  also  U.  S.  Bev.  Stat.  4653.) 


462  INDEX. 

ENFORCING, 

payment  for  salvage,  21. 

final  decree,  Admiralty  Rules  3,  21,  pp.  318,  323. 

ENGINEER, 

is  a  seaman,  234. 

cannot  recover  wages,  when,  238. 

lien  for  wages,  239. 

lien  for  wages  extends  to  boilers,  1  Sprague,  586 ;  13  Law  Rep.  N.  s.  658. 

ENROLMENT, 

admiralty  has  no  regard  to,  33, 

EQUITY, 

how  far  admiralty  courts  are  courts  of,  265,  281. 

ERROR  IN  EXTREMIS, 

cannot  be  alleged  as  a  fault,  221. 

EYIDENCE, 

of  experts,  when  admissible,  267. 

practice  as  to,  in  Louisiana,  268. 

general  rules  of,  266. 

State  laws,  how  far  applicable,  266. 

by  depositions  in,  perpetuam  ret  memoriam,  268. 

common-law  rules  as  to,  not  fully  applied,  267. 

in  admiralty  cannot  be  changed  by  State  statute,  269. 

equity  rule  in  evidence  does  not  apply,  269. 

as  to  custom  or  usage,  xxxv,  272. 

mode  of,  in  admiralty  causes,  266. 

must  be  produced  as  to  allegations  neither  admitted  nor  denied.     (See 

Clarke  et  al.  v.  The  Brig  Dodge  Healy  and  Cargo,  4  Washington's 

C.  C.R.  651.) 
when  reduced  to  writing  in  District  Court  may  be  used  in  Circuit  Court, 

298. 
new,  may  be  taken  in  Supreme  Court  in  maritime  cases,  S.  C.  Rule  12, 

No.  2,  p.  340.  ■    . 

in  Circuit  Court,  Admiralty  Rules  49,  50,  pp.  332,  333. 
by  deposition,  Admiralty  Rules  49,  50,  pp.  332,  333. 
of  usage,  272. 

on  appeal  to  Circuit  Court,  how  taken,  298. 
of  contract  in  salvage  cases,  112. 

on  appeal  to  Supreme  Court,  how  taken.  Admiralty  Rule  50,  p.  333. 
required  to  fix  liability  for  collision,  224. 
witnesses  in  Supreme  Court,  270. 
by  deposition  de  bene  esse,  268. 
of  law  of  England,  how  established,  270. 
by  dedimus  potestatem,  268. 
as  to,  in  prize  causes,  270. 
if  deficient,  what  proceedings  taken,  270. 
State  laws  as  to  competency  of,  adopted  in  admiralty,  except,  266. 


INDEX.  463 

EVIDENCE  —  eontinued. 

oral,  as  to,  taken  by  clerk  of  District  Court,  270 ;  Admiralty  Rule  50, 
p.  333. 

to  be  limited  to  express  allegations  in  pleadings,  258. 

documentary,  334. 

as  to  burden  of  proof  in,  271. 

bUl  of  lading  cannot  be  varied  by  parol,  267. 

strict  rules  of  the  common  law  as  to  admission  of,  not  fully  applied,  267- 
EVIDENCES, 

of  debt,  value  or  title  not  subjects  of  salvage,  170. 
EXCEPTIONS, 

when  to  be  filed,  256. 

to  libel,  allegation,  or  answer,  256 ;  Admiralty  Rules  28, 36,  pp.  326,  329. 

bill  of,  requisites  of,  274,  308. 

effect  of,  when  permitted,  258. 

wlien  matter  referred  to  by,  taken  pro  eonfeaso.  Admiralty  Rule  30,  p.  327. 

to  rules  of  navigation,  when  justified,  221. 

when  considered  waived,  256,  308. 

to  report  of  commissioner,  256. 
EXECUTED  CONTRACTS, 

what  constitutes,  195. 
EXECUTION, 

when  court  will  stay,  246. 

stay  of,  255. 

of  final  decree.  Admiralty  Rule  21,  p.  323. 

runs  against  real  estate.  Admiralty  llule  21,  p.  323. 

against  garnishee  and  property  in  his  hands,  Admiralty  Rule  37,  p.  329. 
EXECUTORY  CONTRACTS, 

jurisdiction  does  not  extend  to,  9. 
EXORBITANT  AMOUNT, 

setting  aside  salvage  agreement  for,  124, 154. 
EXORBITANT  DEMAND, 

dinnnishing  salvage  in  consequence  of,  154. 

for  interest  on  bonds,  28. 
EXPENSES, 

to  be  deducted  from  value,  107. 

extra,  incurred  by  salvors,  allowed  in  award,  99,  lOS. 
EXPERTS, 

evidence  of,  when  admissible,  267. 
EXTENT, 

of  distress  or  peril,  38,  39,  43,  87,  88,  90-93. 


F. 


FALSE  REPRESENTATIONS, 
eflFect  of,  on  salvage  contract,  112. 


464  INDEX. 

EAULT, 

error  in  extremis  is  not  a,  221. 

omissiou  of  precautions  is  a,  212,  223-225. 
FAVOR, 

to  first  salvors  in  cases  of  derelict,  78,  82,  83. 
FEES.    See  Costs  and  Fees. 

of  clerk,  294. 

of  marshal,  294. 
FERRY-BOATS, 

when  subject  to  admiralty  jurisdiction,  10,  14. 
FINAL  DECREE, 

what  is,  304,  308. 

execution  of,  Admiralty  Rule  21,  p.  323. 
FINAL  PROCESS, 

decrees,  how  enforced  by.  Admiralty  Rule  21,  p.  323. 
FINDER, 

claim  of,  takes  precedence  of  all  other  titles,  185. 
FINDING  OF  FACTS  AND  CONCLUSIONS  OF  LAW,  309,  316 ;  Act 

of  1875,  pp.  353,  354. 
FIRE, 

when  owners  not  liable  for  losses  by.     (See  TJ.  S.  Rev.  Stat.  42S2.) 

what  owners  are  liable  for  losses  by.     (See  U.  S.  Rev.  Stat.  4289.) 

saving  from,  a  salvage  service,  45. 
FIRE-ENGINE, 

tug  towing,  to  salve  vessel,  72. 
FIRE-EXTINGUISHING  GASES, 

more  liberal  salvage  award  for  steamers  employing,  95. 
FIREMEN, 

when  not  salvors,  55. 

when  salvors,  74-76. 

deemed  mariners,  234. 
FIRST  SALVORS, 

favored  in  cases  of  derelict,  82. 

when  favored,  78. 

abandonment  by,  83,  84. 

when  remunerated  for  actual  services,  84. 

in  distress,  and  lielped  by  others,  84. 

misconduct  of,  effect  of,  on  second  set,  84,  85. 
FISHING  AND  SEALING  SEASON, 

compensation  for  loss  of,  in  salvage  award,  100,  151. 
FISHING-BOAT, 

apportionment  of  salvage  between  owners  and  crew  of,  151. 
FLATBOATS, 

not  within  admiralty  jurisdiction,  11. 
FLOATING  ELEVATOR, 

jurisdiction  over,  10. 


INDEX.  465 

FLOATING  OF  VESSEL  AGROUND, 
is  salvage  service,  45. 

FLORIDA  COAST, 
salvage  on,  130-134. 

FLOTSAM,  JETSAM,  LIGAN,  SHARES, 
are  within  admiralty  jurisdiction,  19. 
in  California,  186. 

FOG-SIGNALS, 

regulation  as  to,  211. 

FOREIGN, 

port,  definition  of,  204. 

vessel  of  war,  oflBcers  and  crew  of,  as  salvors,  74. 

vessel,  lien  on,  for  repairs  and  supplies,  193. 

FOREIGN  ATTACHMENT, 

mesne  process  by.  Admiralty  Rule  2,  p.  317. 
procedure  in  cases  of.  Admiralty  Rule  37,  p.  329. 

FOREIGNERS, 

controversies  between,  23. 

FORFEITURE, 

of  salvors  for  misconduct,  171. 

information  to  enforce,  within  admiralty  jurisdiction,  30. 

seizure  and,  for  municipal  and  revenue  torts,  26. 

FORMS, 

1.  Libel  in  rem,  general  form,  355. 

2.  Libel  i«  rem  for  labor,  materials,  or  supplies  to  a  foreign  vessel, 

356. 

3.  Libel  in  rem  against  a  domestic  vessel  by  a  ship-joiner  for  labor  and 

materials,  to  enforce  a  State  lien,  358. 

4.  Libel  in  suit  in  rem  for  pilotage,  359. 

5.  liibel  in  suit  in  rem  for  wharfage,  860. 

6.  Libel  in  rem  by  the  owner  of  a  steamer  against  a  canal-boat,  for  tow* 

ing  her,  361. 

7.  Libel  in  rem  for  the  non-fulfilment  of  a  contract  of  affreightment  for 

the  conveyance  of  goods  in  a  general  ship,  362. 

8.  Libel  in  rem  and  in  personam  against  a  vessel  and  owner,  on  a  charter- 

party,  for  the  violation  of  the  charter,  363. 

9.  Libel  in  rem  for  collision,  367. 

10.  Libel  in  rem  on  a  bottomry  bond  given  by  the  master  against  the 

ship,  or  against  the  ship  and  freight,  or  against  the  ship,  freight, 
and  cargo,  371. 

11.  Libel  for  salvage,  372. 

12.  Libel  by  a  passenger  for  a  violation  of  contract,  373. 

13.  Libel  in  rem  for  neglect  to  furnish  provisions  to  a  passenger,  376. 

14.  Libel  in  rem  by  a  mariner  for  wages,  378. 

ao 


466  INDEX. 

FORMS  —  continued. 

15.  Libel  in  rem  by  a  seaman  on  a  whaling  contract  for  his  share  of  the 

voyage,  379. 

16.  Libel  in  rem  by  a  seaman  to  recover  expenses  for  sickness  contracted 

in  service  of  the  ship,  380. 

17.  Libel  in  rem  by  seaman  for  short  allowance  of  bread,  381. 

18.  Libel  in  rem  by  a  ship-owner  against  the  cargo  or  goods  transported, 

for  the  freight  thereof,  382. 

19.  Libel  in  rem,  on  a  charter-party,  by  the  owner,  against  the  cargo,  for 

the  stipulated  freight  or  hire  of  the  ship,  384. 

20.  Libel  in  rem  against  the  ship  and  freight  for  moneys  advanced  to  pay 

repairs,  386. 

21.  Libel  in  personam,  general  form,  388. 

22.  Libel  in  personam  by  a  ship-chandler  against  the  owner  for  supplies, 

390. 

23.  Libel  in  personam  against  the  owners  for  supplies  ordered  by  the 

master  in  a  foreign  port,  390. 

24.  Libel  in  personam  by  mariner  for  wages,  against  the  master  or  owner, 

391. 

25.  Libel  in  personam  against  an  owner  for  the  two  months*  extra  pay, 

payable  to  the  consul  on  discharge,  393. 

26.  Libel  by  a  seaman,  in  a  cause  of  damage,  against  a  master  for  assault 

and  beating,  or  imprisonment,  394. 

27.  Libel  in  personam  by  a  female  passenger  against  the   master  of  a 

vessel  for  insult  and  indecency,  396. 

28.  Libel  in  personam  against  consignee  for  freight  on  a  bill  of  lading, 

398. 

29.  Libel  in  personam  on  a  charter-party  against  the  charterer  for  charter- 

money,  399. 
80.  Libel  by  the  owner  of  a  vessel,  in  personam,  against  the  consignee  of 
the  cargo,  for  unreasonably  detaining  the  vessel,  402. 

31.  Libel  by  a  ship's  husband  against  the  charterers  for  demurrage, 

404. 

32.  Libel  in  rem  and  in  personam  by  a  seaman  against  a  ship,  freight,  and 

master,  for  wages  and  short  allowance  of  bread,  405. 

33.  Libel  in  rem  by  the  owners  of  a  vessel  to  obtain  possession  of  her, 

408. 

34.  Libel  in  rem  against  merchandise  for  possession,  409. 

35.  Libel  in  a  suit  by  a  co-tenant  of  a  ship,  owning  more  than  one-half 

thereof,  to  obtain  possession  thereof  from  his  co-tenant,  410. 

36.  Libel  in  rem  by  a  part-owner  for  a  sale  of  the  vessel,  411. 

37.  Libel  in  a  suit  by  a  co-tenant  owning  a  moiety  or  less  than  a  moiety 

of  a  ship,  to  compel  his  co-tenant  to  give  security  for  her  safe 
return,  412. 

38.  Order  on  libel,  that  process  issue,  414. 

39.  Order  on  libel,  that  warrant  of  arrest  issue,  414. 

40.  Dilatory  exceptions  to  a  libel,  414. 

41.  Exceptions  to  a  libel  for  misjoinder,  415. 


INDEX.  467 

TO'RMS  —  eoHH/iued. 

42.  Peremptory  exceptions  to  a  libel,  415. 

43.  Commencement  of  answer  by  the  owner  of  a  vessel,  proceeded  against 

in  a  suit  t«  rem,  where  the  claim  of  property  is  incorporated  in  the 
answer,  416. 

44.  The  like,  when  the  claim  is  interposed  by  an  agent  or  a  consignee,  418. 

45.  The  like,  where  the  claim  is  interposed  by  the  master,  417. 

46.  Commencement  of  an  answer  in  a  suit  in  personam,  417. 

47.  Conclusion  of  the  answer,  417- 

48.  Stipulation  for  costs  to  be  given  by  the  claimant,  418. 

49.  Exceptions  to  an  answer,  for  insufficiency,  418. 

50.  Affidavit  to  obtain  interlocutory  sale,  419. 

51.  Notice  of  motion  for  interlocutory  sale,  420. 

52.  Order  for  interlocutory  sale  of  ship  and  cargo,  420. 

53.  Order  appointing  appraisers,  420. 
64.   Notice  to  appraisers,  421. 

55.  Appraiser's  oath,  421. 

56.  Notice  of  appraisement,  421. 

57.  Appraiser's  report,  422. 

58.  Consent  to  stipulate  for  property  without  process,  422. 

59.  Consent  that  a  vessel  be  discharged  on  stipulation,  422. 

60.  Consent  fixing  the  value  without  appraisement  and  discharging  the 

property  from  custody,  423. 

61.  Stipulation  for  value,  423. 

62.  Bond  under  U.  S.  Rev.  Stat.  941,  p.  424. 

63.  Penal  bond  to  the  marshal  on  arrest  of  the  person,  425. 

64.  Stipulation  for  the  safe  return  of  a  vessel  in  a  suit  by  a  part-owner, 

426. 

65.  Proceedings  nnder  section  4234  of  the  Revised  Statutes  of  the  United 

States,  427. 

66.  Notice  of  motion  on  the  foregoing  petition,  429. 

67.  Order  for  a  reference  to  ascertain  and  report  the  present  value  of  the 

vessel,  and  that  the  claimants  give  a  stipulation  in  the  amount  so 
reported,  430. 

68.  Stipulation  for  value  in  pursuance  of  the  foregoing  order,  431. 

69.  Affidavit  to  obtain  an  order  for  the  examination  of  a  witness  in  behalf 

of  the  plaintiff,  434. 

70.  Order  thereon,  435. 

71.  Notice  to  the  opposite  party  or  his  attorney,  435. 

72.  Deposition  de  bene  e»»e,  436. 

FORMS  OF  JUSTIFICATION.    See  No*.  48,  61,  62,  63,  pp.  418,  424, 
425,  426. 

FORMS  OF  PLEADING, 
in  different  cases,  253,  254. 

FORMS  OF  PROCEEDINGS, 
regulations  as  to,  246,  251. 


468  INDEX. 

TRAUD, 

setting  aside  agreement  for,  113. 

in  some  of  the  salvors  does  not  affect  non-participants,  175. 
FREIGHT.    See  Forms. 

is  subject  of  admiralty  jurisdiction,  19. 

salvage  on,  at  intermediate  ports,  107. 

arrest  of,  how  made.  Admiralty  Rule  9,  p.  319. 

not  the  mother  of  wages,  237- 

and  ship,  limitation  of  liability  of  owners  to  value  of.    (See  TJ.  S.  Rev. 
Stat.  4282,  4283.) 

contracts  for,  are  within  admiralty  jurisdiction,  19. 

subject  to  lien  for  wages,  239. 

to  contribute  to  salvage,  170. 

may  be  brought  into  court,  Admiralty  Rule  38,  p.  329. 
FURNITURE  OF  SHIPS.    See  Appurtenances. 
FURTHER  PROOF, 

in  Supreme  Court,  shall  be  by  commission,  S.  C.  Rule  12,  p.  340. 

in  Circuit  Court,  on  appeal,  269 ;  Admiralty  Rule  49.  n.  333. 

when  cause  continued  for,  270. 

G. 

GASES, 

more  liberal  salvage  award  for  steamers  employing  fire-extinguishing,  95. 
GARNISHEE, 

Admiralty  Rules  2,  p.  317,  and  37,  p-  329. 
GARNISHMENT, 

seamen's  wages  not  subject  to,  when,  231. 
GENERAL  AVERAGE, 

when  salvage  is,  168. 

claim  for,  postponed  to  salvage  service,  169, 185. 

life  salvage  treated  as,  169. 

jurisdiction  as  to,  28. 

expenses  of  saving  ship  and  cargo  are  proper  subjects  of,  169. 

jettison  is  subject  of,  168. 

salvage  service  has  priority  over,  169. 
GREAT  EASTERN, 

case  of  the,  57. 

H. 

HARBORS, 

admiralty  jurisdiction  embraces,  6. 
HARD  BARGAIN, 

effect  of,  on  salvage  agreement,  122,  124. 
HAVENS,  f 

jurisdiction  extends  to,  8. 
HEARING.    See  Trial. 

either  party  may  notice  the  case  for,  274. 


-  INDEX.  469 

HIGH  SEAS, 

life  salvage  on,  101,  102. 

admiralty  jurisdictiou  not  limited  to,  4. 

less  salvage  award  on  Western  rivers  than  on,  134. 
HIRER, 

of  salvage  ship,  when  entitled  to  salvage,  60,  61. 
HOME  PORT, 

definition  of,  204. 
HUNTSVILLE, 

the  case  of  the,  74- 
HYPOTHECATION, 

parties  in  cases  of.  Admiralty  Rules  17,  18,  p.  322. 

I. 

ICE, 

salvage  award  for  loss  of  cai^  of,  100. 

IGNORANCE, 

of  locality,  of  master,  effect  of,  on  salvage,  43. 
IMPERTINENCE.     See  Scandal. 
IMPRISONMENT, 

for  debt,  where  abolished.  Admiralty  Rule  47,  p.  332. 
INCENTIVE, 

and  premium,  salvage  award  increased  as,  89,  171. 
INDECENCY, 

insult  and  immodesty  to  female  passenger,  form  of  libel  for,  No.  27,  p.  395. 
INDORSEE, 

as  agent,  may  libel  for  goods  claimed,  9. 
INDULGENCE, 

to  salvors  in  questions  of  costs,  288. 
INEVITABLE  ACCIDENT, 

definition  of,  223. 
INFORMATION.     See  Foems. 

requisites  of,  Admiralty  Rule  22,  p.  324. 

as  to  locality,  in  salvage,  43. 
INFORMATIONS, 

in  case  of  forfeitures,  30. 

and  libels  of  information.  Admiralty  Rule  22,  p.  324. 

amendments  to  libels  of,  Admiralty  Rule  24,  p.  325. 
INFRA   CORPUS  COMITATUS, 

admiralty  jurisdiction  extends  to  waters,  5. 
INGREDIENTS, 

of  salvage  service,  37,  38. 
INJUNCTION, 

to  stay  proceedings,  265. 
INJURY, 

by  collision.  Admiralty  Rule  54,  p.  336. 


470  INDEX. 

INLETS, 

admiralty  jurisdiction  embraces,  6. 
IN  PARI  CONDITIONE, 

rule  as  to  priority,  282. 
IN  PERSONAM.    See  Personam. 
IN  REM.     See  Rem. 
INSURANCE.    See  Deviation  ;  Polict  ;  Underweiter. 

agents  may  be  salvors,  54.     (See  also  The  Aroma  Mills,  2  Hughes,  40  ; 
The  Traveller,  3  Hagg.  370.) 

ceases  upon  deviation,  when,  49,  101-103. 

marine,  contracts  of,  cognizable  in  admiralty,  28. 

salvage  in,  36. 

lien  for  premium  of,  28,  190. 

lien  on,  when,  190. 
INSURGENT   SLAVES, 

rescue  of  vessel  from,  is  salvage  service,  46. 
INTEREST, 

on  decrees  in  admiralty,  278,  279. 

on  salvage  award,  251,  279. 

on  seamen's  wages,  232. 

when  exorbitant,  admiralty  can  give  relief,  28. 
INTER  FAUCES  TERRM, 

compensation  may  be  obtained  for  services  rendered,  247. 
INTERLOCUTORY  DECREE, 

no  appeal  from,  296. 
INTERMEDIATE  PORT, 

salvage  of  freight  at,  107. 
INTERROGATORIES, 

libellant  may  require  defendant  to  answer.  Admiralty  Rule  23,  p.  324. 

defendant  may  require  libellant  to  answer,  Admiralty  Rule  32,  p.  327. 

verification  of  answer  to,  when  dispensed  with.  Admiralty  Rule  33,  p.  328. 

commission  may  be  awarded  to  take  answer  to.  Admiralty  Rule  33,  p.  328. 

form  of  prayer  for,  389. 

garnishee  may  be  required  to  answer.  Admiralty  Rule  37,  p.  329. 
INTERVENORS, 

shall  be  required  to  give  stipulation.  Admiralty  Rule  34,  p.  328. 

may  petition  fro  interesse  suo  in  proceeds  in  the  registry,  Admiralty  Rule 
43,  p.  331. 

when  underwriters  may  be,  247. 

cannot  come  in  on  collateral  interest,  247. 
INTRUSION.     See  Obtruding. 
IRRELEVANCY.     See  Scandal. 

J. 

JETTISON.    See  General  Average. 
admiralty  has  jurisdiction  over,  28. 


INDEX.  471 

JOINDER, 

of  proceedings,  254 ;  Admiralty  Rule  19,  p.  323. 

of  suit  t»  rem  and  in  personam,  254 ;  Admiralty  Rules  12-15,  17-19, 

pp.  321-323. 
of  parties,  254. 
of  causes  of  action,  254. 
salvors  not  deprived  of  remedy  because  other  salvors  refuse,  248. 

JUDICIAL  SALE, 

in  admiralty  divests  liens,  201. 

JURISDICTION.     See  Admiralty  Couets;  Appeal;  Costs  and  Fees; 
Interest. 
of  District  Courts,  1. 
of  courts  of  admiralty,  1-3,  9,  18,  24. 
depends  on  navigability  of  waters,  4. 
objections  to,  25. 

may  not  extend  to  waters  only  occasionally  navigable,  8. 
locality  of,  in  salvage  cases,  22. 
of  United  States  courts,  exclusive  of  State  courts,  1. 
not  ousted  by  surrender  of  possession,  when,  298. 
in  personam  and  in  rem,  21. 
by  attachment  of  property  of  non-residents,  2. 
docs  not  depend  on  citizenship,  4. 
extends  to  interior  navigable  rivers,  4. 
extends  to  lakes  and  waters  connecting  them,  4. 
extends  to  navigable  waters  though  in/ra  corpus  comitatus,  5. 
extends  to  navigable  waters  though  wholly  within  the  boundary  of  a 

State,  6. 
extends  to  colhsions  between  foreign  vessels,  4,  22. 
embraces  ports,  havens,  and  bays,  5,  6,  8. 
embraces  maritime  contract,  9,  13. 
embraces  cases  arising  quasi  ex  contractu,  10. 
does  not  include  preUminary  contracts,  9. 
includes  claims  for  wharfage,  9. 
includes  damages  for  collision,  4. 
includes  canal-boats,  10. 
includes  a  floating  elevator,  10. 
includes  ferry-boats,  10. 
includes  a  scow,  when,  10, 11, 
includes  lighters,  11. 
includes  salvage  to  derrick-boat,  11,  48. 
includes  supplies  and  materials,  28. 
does  not  extend  to  a  derrick  on  a  pier,  21. 
does  not  extend  to  stationary  docks,  12. 

does  not  extend  to  a  dismantled  steamboat  fitted  up  for  a  saloon,  15. 
does  not  extend  to  wrongs  consummated  on  laud,  21. 
extends  to  a  barge  adrift,  15. 
extends  to  a  box  of  bullion,  15. 


472  INDEX. 

JURISDICTION  —  continued. 

does  not  extend  to  a  wliarf,  to  a  bridge,  or  to  real  estate,  15. 

is  given  by  locality  in  case  of  tort,  15. 

extends  to  suits  between  foreigners,  22. 

extends  to  causes  of  collision,  I. 

over  freight,  19. 

plea  to,  16,  23. 

of  Circuit  Courts,  24. 

of  Supreme  Court,  25. 

principal  subjects  of,  26. 

special  subjects  of,  27. 

does  not  extend  to  national  vessels  of  war,  31. 

not  destroyed  by  improper  removal  of  the  res,  33. 

extends  to  cases  of  personal  injury,  19. 

over  cargo,  19. 

has  no  regard  to  registry,  enrolment,  or  license,  33. 

over  apparel  and  taclile,  19. 

over  carriers,  34. 

over  loans  upon  ships,  19. 

extends  to  agreements  of  consortship,  61,  140. 

whether  extends  to  wages  of  stevedores,  194. 

extends  to  flotsam,  jetsam,  ligan,  shares,  19. 

extends  to  wreck  of  the  sea,  19. 

JURY, 

criminal  cases  tried  by,  265. 

when  instance  causes  tried  by,  309 ;  Act  of  1875,  p.  353. 

JUS  DISPONENDI, 

master  and  owner  does  not  lose,  by  quitting  vessel,  105. 

JUS  GENTIUM, 

relation  of  admiralty  law  to,  26. 
salvage  arises  under,  22. 

JUS  LiqUIDISSIMUM, 

salvage  is,  74. 

JUSTIFICATION, 

of  sureties  to  stipulations,  forms  of,  No.  48,  p.  418 ;  No.  61,  p.  424 ; 
No.  62,  p.  425  ;  No.  63,  p.  426. 

K. 

KEEPER, 

in  port  has  no  lien,  205. 

of  domestic  vessel  cannot  sue  even  in  personam,  205. 

KITCHEN-BOY, 

is  deemed  a  mariner,  241. 


INDEX.  473 

L. 

LACHES, 

as  to,  in  enforcing  maritime  liens,  164-169,  249,  250. 

LAKES, 

admiralty  has  jurisdiction  over,  5. 

LAW  OF  NATIONS, 

decisions  of  admiralty  based  on,  26. 

LETTERS  ROGATORY.    See  Rev.  Stat.  sect.  875,  p.  351. 

LIABILITY, 

of  tug  and  tow,  225. 

when  pilot  on  board,  225. 

limited,  of  owners,  249.     (See  also  U.  S.  Rev.  Stat.  4282-4289.) 

exception  to  limitation  of.     (See  U.  S.  Rev.  Stat.  4289.) 

of  ship  and  responsibility  of  owners,  convertible  terms,  190. 

LIBEL.    See  Forms  ;  Rules. 

in  salvage  cases,  Admiralty  Rule  19,  p.  323. 

dismisssj  of.  Admiralty  Rule  32,  p.  327. 

in  instance  causes,  civil  or  maritime,  253 ;  Admiralty  Rule  23,  p.  324. 

joint  or  separate,  may  be  consolidated,  248. 

in  personam,  general  form  of.  No.  21,  p.  388. 

in  rem,  general  form  of.  No.  1,  p.  355. 

by  salvors  v.  co-salvors,  164. 

amendment  of,  258 ;  Admiralty  Rule  24,  p.  325. 

joinder  of  parties  in,  254. 

should  state  payments  in  respect  of  the  damage  or  detention  of  salving 
vessel,  100. 

cross,  256,  257. 

until  filing  of,  no  mesne  process  shall  issue.  Admiralty  Rule  1,  p.  317. 

interrogatories  may  be  appended  to.  Admiralty  Rule  23,  p.  324. 

of  information,  324,  325. 

in  rem,  may  be  by  arrest  or  attachment,  22. 
LIBELLANT, 

non-appearance  of,  on  return-day  of  process,  256 ;  Admiralty  Rule  39, 
p.  330. 

bound  to  answer  interrogatories.  Rule  32,  p.  327. 

may  move  for  better  security.  Admiralty  Rule  6,  p.  319. 
LIBELLANTS, 

second,  awarded  salvage,  74. 
LIBERALITY, 

in  salvage  awards,  88,  95. 
LICENSE, 

admiralty  has  no  regard  to,  33. 
LIEN, 

maritime,  adopted  from  the  civil  law,  189. 

definition  of,  202. 

imports  tacit  hypothecation,  189. 


474  INDEX. 

LIEN  —  continued. 

stricti  juris,  190, 195. 

execution  of,  190. 

divestment  of,  190,  200. 

is  jus  in  re  without  possession,  190. 

of  salvors  on  property,  182,  184,  185. 

can  exist  only  on  movables,  190. 

extends  to  proceeds,  190. 

created  by  contract,  193. 

owners  of  injured  vessel  have  no,  for  insurance  of  colliding  vessel,  190, 

by  advances  to  pay  salvage,  163. 

is  based  on  necessity,  191. 

extends  only  to  vessel  in  foreign  port,  192. 

on  personal  property  of  the  United  States,  170. 

on  vessel,  what  acts  of  master  create,  191. 

of  others  than  salvors,  189-205. 

does  not  attach  on  contract  made  on  land,  to  do  work  within  body  of  the 

county,  192. 
of  material-men,  192. 

does  not  arise  on  personal  credit  given,  193. 
on  domestic  vessels,  198. 
services  must  be  maritime  to  secure,  194. 
of  builders,  199. 

may  be  enforced  against  property  in  hands  of  third  persons,  21. 
not  extinguished  by  acceptance  of  a  note,  when,  198. 
for  wharfage,  200. 
for  wages,  200. 

sale  of  vessel  extinguishes,  201. 
on  ship,  for  torts  of  master  and  crew,  201. 
master  has  no,  for  wages,  202. 
for  lockage,  202. 

admiralty,  distinguished  from  equity,  202. 
ship-broker  has  no,  for  procuring  charter-party,  203. 
of  mortgage  inferior  to  maritime,  203. 
when  superior  to  that  given  by  State  legislation,  203. 
priority  of,  185,  186,  196,  203. 
competing,  204. 

attaches  to  wrong-doing  vessel  and  her  freight,  204. 
no,  for  navigating  a  raft  of  logs,  204. 
of  stevedore,  194,  204. 
watchman  has  no,  205. 
keeper  has  no,  205. 

owner  of  cargo  has  no,  till  delivered  to  the  master,  205. 
of  ship-owner  on  cargo  for  freight,  205. 
of  bottomry  holder,  22,  322. 
of  pilots,  322. 
of  seamen,  239. 
of  shipper  on  freight,  195. 


INDEX.  475 

LIES  —  eoniinvecf. 

for  repairs,  193. 

for  supplies,  193,  197. 

for  supplies  preferred  to  claim  of  forfeiture,  197. 

services  must  be  maritime  to  secure,  194. 

for  advances,  196. 

for  towage,  195. 

for  customs  duties,  189. 

proctors  have,  for  their  costs,  293. 

not  maritime,  depeading  upon  State  laws,  not  within  admiralty  jurisdic* 
tion,  28. 

tinder  the  common  law  does  not  attach  without  possession,  200. 

cannot  exist  upon  a  bridge,  15. 
LIFE, 

salvage  of  38,  48, 49,  169. 

liability  for  loss  of,  10. 
LIGHTERS, 

within  admiralty  jurisdiction,  11. 
LIGHTS, 

required  by  statute,  212. 

false,  213. 
LIMITATION, 

of  liability,  249.    (See  also  U.  S.  Rev.  Stat.  4282-4289.) 

statute  of,  does  not  apply  in  admiralty,  250. 

of  right  to  bring  suit,  164, 165. 

decided  by  the  court,  250. 
LIS  ALIBI  PENDENS, 

one  suit  by  salvors  no  bar  to  another  suit  by  other  salvors,  248. 
LLOYD'S  AGENT, 

claim  for  salvage  by,  73. 
LOANS, 

upon  ships,  within  admiralty  jurisdiction,  19. 

in  foreign  port  for  necessaries,  196. 

placed  on  same  footing  as  purpose  for  which  borrowed,  196. 

made  in  good  faith  bind,  196. 
LOCALITY, 

ignorance  of  master  of,  effect  of,  43. 

of  services  partly  on  land  and  partly  on  water,  76. 

is  test  of  jurisdiction  in  torts,  15. 

not  the  test  of  maritime  nature  of  contracts,  14. 

decisions  of  persons  acquainted  with,  effect  of,  311. 
LOCKAGE, 

lien  for,  202. 
LOOKOUTS, 

omission  to  have,  215. 
LOSS, 

of  life,  liability  for,  10. 


476  INDEX. 

LOSS  —  continued. 

by  collision,  when  divided,  229. 

by  fire,  limitation  of  liability  for.     (See  U.  S.  Rev.  Stat.  4282.) 

by  jettison  is  subject  of  general  average,  168. 

or  damage  sustained  by  salvors,  allowed  for  in  award,  99. 
LYING  BY  A  VESSEL, 

a  salvage  service,  41, 140. 


M. 

MAGISTRATE, 

claim  for  salvage  by,  73. 
MAILS, 

not  liable  to  salvage.  Schooner  Merchant,  Marvin,  p.  132 ;  2  Parsons  on 
S.  &  A.  303. 
MANDAMUS, 

when  appellant  may  apply  for,  20,  21,  250. 
MANDATE, 

costs  to  be  inserted  in,  S.  C  Rule  24,  p.  341. 

to  be  issued  by  clerk  in  cases  of  dismissal,  S.  C.  Rule  24,  p.  341. 
MARINERS.    See  Seamen. 
MARITIME  CONTRACTS, 

agreements  leading  to,  not  maritime,  9. 

contracts  within  admiralty  jurisdiction,  9,  13. 
MARITIME  LAW, 

how  far  operative,  3. 

MARITIME  LIENS.    See  Liens. 
MARSHAL, 

fees  of,  294. 

commissions  of,  294. 

MARSHALLING  ASSETS, 

order  of,  settled  by  court,  197,  280,  281. 

principles  on  which,  is  effected,  197. 
MASTER, 

supplying  vessel  with,  a  salvage  service,  44. 

has  no  lien  for  wages,  202. 

shall  perform  the  voyage  stipulated,  235. 

salvors  bound  to  obey,  78. 

return  of,  after  leaving  for  assistance,  78. 

authority  of,  to  bind  owners  by  salvage  agreement,  113. 

proportion  of  salvage  awarded  to,  137. 

whether  included  among  mariners,  234,  240. 

sale  of  vessel  by,  cuts  off  lien,  239. 

personal  action  lies  against,  for  discharge  of  seamen,  238. 

in  foreign  port,  may  bind  owners,  when,  190. 

what  acts  of,  create  a  lien  on  the  vessel,  191. 

suit  cannot  be  brought  against,  247. 


INDEX.  477 

MATE, 

when,  may  be  a  salvor,  46. 

succeeding  as  n)ast€r,  236. 

proportion  of  salvage  awarded  to,  138. 

damages  for  death  of,  bj  collision,  33. 

whether  deemed  a  seaman,  234,  240. 
MATERIAL-MEN, 

may  proceed  in  rem  or  i»  personam  against  master  or  owner,  Admiralty 
Rule  12,  p.  321. 

have  a  threefold  security,  193. 

lieus  of,  28,  242. 

who  arc,  242. 

contracts  by,  242-244. 

suits  by,  244,  245  ;  Admiralty  Rule  12,  p.  321. 

forms  of  libel  by.  No.  2,  p.  356 ;  No.  3,  p.  358 ;  No.  22,  p.  390 ;  No.  23, 
p.  390. 
MATTER  IN  DISPUTE, 

to  justify  appeal  to  Supreme  Court,  must  exceed  $5,000,  Act  of  1875, 
p.  354.    . 

definition  of,  26. 

to  justify  appeal  to  Circiiit  Court,  must  exceed  950,  p.  296. 
MEASURE, 

of  reward  in  salvage  cases,  87  ei  teq. 

of  liability  of  tug  to  tow,  225. 

of  damages  in  cases  of  collision,  228. 
MEN, 

supplying,  when  a  salvage  service,  44. 
MESNE  PROCESS.     See  Process. 

imprisonment  on,  abolished.  Admiralty  Rule  47,  p.  332. 

when  warrant  of  arrest  under,  may  issue.  Admiralty  Rules  2,  7,  pp.  317, 
319. 

not  to  issue  till  libel  filed.  Admiralty  Rule  1,  p.  317 
MESSENGER, 

when  a  salvor,  43. 
MILITARY  SALVAGE.    See  Salvagi. 

definition  of,  49. 

laws  as  to,  49-51. 

what  constitutes  a  case  for,  51,  52. 

right  to,  52. 

MINORS, 

share  of  salvage  reward,  163. 

as  receivers  of  salvage  advances,  163. 
MISCONDUCT, 

the  rule  as  to,  applies  to  false  representation,  spoliation,  and  smnggling, 
176. 

of  first  salvors  by  abandonment,  effect  on  second  set,  83. 

reducing  proportion  of  salvage  for,  177. 


478  INDEX. 

MISCONDUCT  —  continued. 

effect  of  negligence  or,  on  amoimt  of  salvage,  171,  179. 

forfeiture  by  salvor  for,  171. 

instances  of,  172-174. 

diminution  of  salvage  for,  171,  177. 

obtruding  services  as  salvors  is,  172. 

evidence  of  acceptance  of  salvage  service,  173. 

refusing  further  salvage  assistance  may  be,  173,  176. 

exorbitant  demand  for  salvage  is,  173. 

must  be  connected  with  service  as  salvor,  173. 

bad  faith  is,  for  which  salvage  is  diminished,  174. 

by  bad  faith  in  salvor,  American  law  as  to,  174. 

as  to  effect  of  bad  faith  in  salvor,  174. 

by  robbery  by  salvor,  effect  of,  174. 

by  embezzlement  forfeits  salvage,  176,  177. 

by  robbery  by  salvor,  American  law  as  to,  174. 

by  salvor,  effect  of  subsequent  negotiations  on,  175. 

pleading  charge  of,  175. 

to  be  pleaded,  when,  175. 

by  tampering  with  log,  177. 

evidence  of,  must  be  conclusive,  when,  173. 

on  the  part  of  the  master,  effect  of,  on  claim  of  owner,  175. 
MISJOINDEK, 

of  parties  libellant,  254. 
MISSISSIPPI  RIVER, 

salvage  on  the,  16. 
MIXED, 

cases  called,  76. 
MOIETY.    See  Deeelict  ;  Owners  ;  Salvage. 
MONEY, 

when  subject  of  salvage,  19. 

found  on  drowned  persons  not  subject  to  salvage,  170. 

paid  on  tender  remains  in  registry,  when,  261. 
MONITION, 

and  service  by  notice,  a  good  attachment,  22. 

mesne  process  may  be  by,  Admiralty  Rule  2,  p.  317. 

for  delivery  of  ship's  appurtenances,  Rule  8,  p.  319. 

when  the  res  is  arrested,  the  marshal  publishes  a,  255. 
MORTGAGES, 

where  several,  secured  in  a  body,  aggregate  the  appealable  amount,  315, 

held  by  salvors  do  not  deprive  them  of  claim  to  salvage,  186. 
MOTION, 

for  better  security,  when  libellant  may  make.  Admiralty  Rule  6,  p.  319. 
MURDER, 

admiralty  jurisdiction  extends  to,  when,  33. 
MUSICIAN, 

engaged  as  such  only,  is  not  a  mariner,  241. 


INDEX.  479 

MUTUAL  ASSISTANCE, 

as  to  salvage  ia  cases  of,  61, 140. 
MUTUAL  RESPONSIBILITY, 

of  tug  and  tow,  225. 

N. 

NATIONAL  VESSELS,  51. 

of  war,  31. 
NAVAL  MARINE, 

salvage  by,  same  as  by  private  marine,  74. 
NAVAL  OFFICERS.    See  Officebs  and  Ckew  op  thb  Navt. 

NAVIGABLE, 

stream,  as  to  obstructions  of,  6. 

waters.  United  States  courts  have  jurisdiction  over,  4. 

waters,  definition  of,  4,  5. 
NAVIGATION.    See  Collision. 

general  rules  of,  216. 

rules  of,  as  to  rivers,  217. 

of  tug  and  tow,  when  either  or  both  responsible  for  collision,  225. 

when  pilot  has  control  of,  225. 

unlawful  obstructions  to,  what  are  not,  6. 

NAVY  PENSION  FUND, 

moiety  of  prize  goods  to,  51. 

NECESSARIES.    See  Material- men. 

lien  on  account  of,  when  furnished  to  a  ship,  193. 
definition  of,  192. 

NECESSITY, 

to  create  lien  must  be  proved,  191-193. 
proof  of,  establishes  necessity  of  credit,  193. 
orders  of  master  create  presumption  of,  191. 
for  credit,  how  proved,  193. 

NEGLECT, 

to  name  owners  in  stipulation,  254. 

to  prosecute  appeal,  relief  in,  302. 
NEGLIGENCE, 

contributory,  216,  224. 

of  tug,  effect  of,  on  towage  contract,  72. 

salvage  forfeited  for,  171. 

causing  death  or  injury,  32. 

renders  liable  for  collision,  222. 

of  one  vessel  not  to  excuse  fault  of  other,  224. 

on  the  part  of  steamer  as  to  lights,  223. 
NEGOTIATION, 

of  owners  with  salvors,  effect  of,  on  defence  of  misconduct,  175. 


480  INDEX. 

NEUTRALS, 

when  entitled  to  salvage,  50. 
NEW  EVIDENCE,  Rule  12,  No.  2,  p.  340. 
NOMINE  EXPENSARUM, 

a  fixed  sum  allowed  instead  of  costs,  when,  288. 

o. 

OATH, 

whether  answer  required  to  be  under,  324,  326,  332. 

claim  verified  by,  269 ;  Admiralty  Rule  26,  p.  326. 
OBLIGATION, 

of  steamer  to  avoid  collision,  208. 

of  steamer  to  slacken  speed,  210. 

of  vessels  to  exhibit  lights,  211-213. 
OBSTRUCTIONS, 

of  channel,  what  are  not,  6. 
OBTRUDING, 

diminution  of  salvage  for,  176. 

vessel  injured  through,  may  sue  in  personam,  15. 
OFFENCES.     See  Crimes  and  Offences. 
OFFICERS  AND  CREW  OF  THE  NAVY, 

as  salvors,  73,  74. 

salvage  award  to,  141. 

OFFICIAL  PERSONS, 

may  become  salvors,  when,  73. 
OHIO  RIVER, 

salvage  on  the,  14. 

coal-barge  adrift  on,  may  be  tbe  subject  of  salvage  service,  16. 
OMISSION, 

of  hghts  defeats  recovery  in  collision,  when,  212. 

of  precautions  a  fault,  212,  223. 

ONUS  PROBANBI, 

in  actions  for  collision,  224. 

where  salving  vessel  injured  or  lost,  99. 

in  salvage  agreement,  123. 

of  misconduct  of  salvors,  173. 

on  appellant,  271,  309. 

as  to  exemption  from  duties,  272. 

ORDERS, 

of  master,  salvors  bound  to  obey,  78. 

of  master  for  supplies,  &c.,  a  presumption  of  necessity,  191. 
OWNERS.     (See  U.  S.  Rev.  Stat.  4282,  4283.)    See  Salvage  ;  Salvoes, 

proportion  of  salvage  between  crew  and,  136,  144-148,  150-152. 

repairs  by,  deduction  for,  149,  150. 

having  paid  salvage  claims  on  cargo,  have  lien  on  it,  165. 


INDEX.  481 

OWNERS  —  eontinued. 

of  a  steamer  performing  salvage  services,  94,  149. 

of  a  fishing-boat  performing  salvage  services,  151. 

salvage  award,  when  salving  and  salved  vessels  belong  to  the  same,  151. 

shares  generally  not  above  a  moiety,  145. 

effect  of  award  to,  on  separate  claim  of  crew,  151 

American  law  as  to  proportion  to,  152. 

have  no  lien  for  insurance  of  colliding  vessel,  190. 

when  bound  by  salvage  agreement  of  master,  113. 

claim  of,  to  salvors'  shares  of  apprentices,  139. 

limitation  of  liability  of.     (See  U.  S.  Rev.  Stat.  4282,  4283.) 

of  salving  vessel,  when  entitled  to  custody  of  property  salved,  182. 

how  far  liable,  when  pilot  on  board,  225. 

when  personally  liable  for  wages,  238. 

forms  of  libel  by,  No.  6,  p.  361 ;  No.  18,  p.  382;  No.  19,  p.  384. 

when  personally  liable  for  salvage,  246. 

instances  of  salvage  reward  to,  152. 


P. 

PARENT, 

may  libel  for  abduction  of  son,  32. 
PAROL  EVIDENCE, 

when  admissible  to  explain  bill  of  lading,  267. 
PARTICIPATION, 

share  of  salvor  refusing,  153. 
PARTIES. 

in  collision  by  joint  act  of  two,  when  both  may  be  made,  229. 

all  co-salvors  may  be  made,  in  one  suit,  248. 
PART-OWNERS,  CO-TENANTS,  OR  PARTNERS  IN  SHIPS, 
•     suits  between,  29. 

forms  of  libels  by,  Nos.  35-37,  pp.  410-412. 
PART  PERFORMANCE, 

of  salvage  service,  when  to  be  paid  for,  77. 
PASSENGER, 

ship,  salvage  by,  amount  awarded  to,  98,  149. 

steamer,  salvage  of,  amount  awarded  for,  57- 
PASSENGERS, 

their  contract  for  carriage,  27,  33. 

in  ships  saved,  claiming  to  be  salvors,  57. 

when  entitled  to  salvage,  57. 

money  on  drowned,  not  subject  to  salvage,  170. 

form  of  libel  by  female,  for  immodesty,  &c.,  No.  27,  p.  396. 

form  of  libel  by,  for  violation  of  contract,  No.  12,  p.  373. 

form  of  libel  in  rem  for  neglect  to  supply  provisions  to.  No.  13,  p.  376. 

damages  for  death  of,  32. 

torts  of,  33. 

31 


482  INDEX. 

PAYMENT, 

made  on  salvage  to  be  set  out  in  libel,  100. 

PERIL, 

how  far  requisite  to  salvage,  38,  39. 
vessel's  position  as  evidence  of,  in  salvage,  39. 
PERISHABLE  GOODS, 

■when  may  be  sold,  or  delivered  to  claimant,  255, 262-265  ;  Admiralty  Rule 
10,  p.  320. 

PERSONAL  INJURIES, 

admiralty  has  jurisdiction  in  actions  for,  on  navigable  waters,  31. 
PERSONAL  PROPERTY, 

of  the  United  States  liable  to  salvage,  170 

PERSONAM,  IN, 

forms  of  libel,  355-386. 

PETITORY  AND  POSSESSORY  SUITS, 

within  admiralty  jurisdiction,  29. 

process  in,  shall  be  by  arrest  of  ship  and  by  monition,  Admiralty  Rule  20, 
p.  323. 

forms  of  libels  for,  Nos.  35-37,  pp.  410-412. 
PIER, 

admiralty  has  no  jurisdiction  over  derrick  on,  21. 
PILOT, 

salvage  by,  43,  65-67. 

jurisdiction  over,  28. 

where  vessel  in  distress,  65, 138. 

remaining  by  vessel,  65. 

acting  outside  vocation,  66. 

ambiguous  signal  for,  66-68. 

pilotage  by  unlicensed,  238. 

salvage  award  to,  138. 

when  onboard,  how  affecting  damages  for  collision,  225. 

is  a  seaman,  when,  234. 

when  may  be  salvor,  65,  66. 
PILOTAGE, 

compulsory,  effect  of,  225. 

in  suits  for,  how  libellants  may  proceed,  Admiralty  Rule  14,  p.  322. 

suit  in  rem  for.  No.  4,  p.  359. 

when  deemed  salvage  service,  68. 

fees,  claims  for,  within  admiralty  jurisdiction,  28. 
PIRACY, 

cases  of,  within  admiralty  jurisdiction,  29. 
PIRATES, 

rescue  of  vessel  from,  46. 
PLACE, 

where  service  rendered,  jurisdiction  limited  by,  15. 


INDEX,  483 

PLEA, 

to  jurisdiction,  16,  23,  24. 

to  merits  admits  jurisdiction,  34. 
PLEADINGS.    See  Rules,  Admiralty. 

rules  AS  to,  in  admiralty,  246,  259. 

misconduct,  when  to  be  alleged  in,  175. 

parties  bound  by  allegations  in,  25S. 

rules  of,  must  be  complied  with,  260. 

in  District  CJourt,  consist  of  what,  254. 

in  admiralty,  more  simple  than  at  common  law,  258,  259. 
POLICY, 

of  insurance  within  admiralty  jurisdiction,  when,  19,  28. 
PORT, 

bringing  vessel  into,  is  salvage,  45. 

maritime  lien  extends  only  to  vessel  in  foreign,  192. 
PORTS, 

admiralty  has  jurisdiction  of,  8. 
POSITION  OF  VESSEL, 

as  evidence  of  distress,  66. 

evidence  in  case  of  derelict,  80. 
POSSESSION, 

must  be  lawful,  to  entitle  to  salvage,  105. 

giving  up  of  property  does  not  affect  salvor's  right,  183. 

how  long  salvors  may  retain,  182. 

in  cause  of,  admiralty  has  jurisdiction,  when,  32. 
POSSESSORY  ACTION.    See  Petitoey  and  Possessoet  Suits. 

admiralty  has  jurisdiction  of,  29. 
PRACTICAL  FORMS.    See  Forms. 
PRACTICE.    See  Joindee  ;  Revised  Statutes  ;  Rules. 

when  District  and  Circuit  Courts  to  regulate,  Admiralty  Rule  46,  p.  332. 

as  prescribed  by  Supreme  Court  Rules,  317-343. 

as  regulated  by  Act  of  1875,  p.  353. 
PRECAUTION.    See  Collisiok. 

to  avoid  collision,  207. 

obligatory  on  steamers  to  avoid  collision,  208. 

to  be  used  seasonably,  222. 
PRECEDENT.    See  Foems. 
PRELIMINARY, 
contract,  9. 

PREMIUM, 

salvage  award  increased  as  incentive  and,  89, 171. 

insurer  may  libel  for,  28. 

lien  for,  when,  190. 
PRIORITY, 

of  salvage  claims  over  other  liens,  197. 

of  mortgage,  198. 


484  INDEX. 

PRIORITY  —  continued. 

ill  bringing  suit,  197. 

of  lien  for  seamen's  wages,  197. 

when  postponed  by  law  of  retaliation,  197. 
PRIVATEERS, 

salvage  of  vessel,  &c.,  by.     (See  U.  S.  Rev.  Stat.  933.) 
PRIZE, 

practice  to  allow  further  proof  in,  270. 

cases  of,  cognizable  exclusively  in  District  Courts,  1,  30. 

in  cases  of,  salvage  deraaudable  on  recapture,  49. 

PROBATA,  ALLEGATA  ET, 

decree  must  be  secundum,  258. 
PROCEEDINGS, 

filing  of  claim  and  answer,  or  exceptions,  in,  256. 

how  regulated,  251. 

in  suits  for  salvage  service,  246. 

note  accepted  for  services  must  be  filed  in,  299. 

stay  of,  246. 

PROCEEDS, 

marshalling  of,  197. 

brought  into  court,  how,  Admiralty  Rule  38,  p.  329. 

party  having  interest  in,  may  intervene,  how.  Admiralty  Rule  43,  p.  331. 

monition  to  brmg  in,  Admiralty  Rule  38,  p.  329. 

of  sale,  when  paid  into  the  registry.  Admiralty  Rule  41,  p.  330. 
PROCESS.    See  Final  Phocess  ;  Meske  Proceeds. 

of  arrest,  in  what  cases  abolished,  Admiralty  Rule  47,  p.  332. 

not  to  issue  until  libel  filed,  253;  Admiralty  Rule  1,  p.  317. 

nature  of  mesne,  in  suits  in  personam,  Admiralty  Rule  2,  p.  317. 

how  served,  Admiralty  Rule  1,  p.  317. 

nature  of,  in  suits  in  rem.  Admiralty  Rule  9,  p.  319. 

notice  of  return  of,  and  hearing,  liow  given.  Admiralty  Rule  9,  p.  319. 

is  a  warrant,  when  the  libel  is  in  rem,  255. 

in  petitory  and  possessory  suits,  Admiralty  Rule  20,  p.  323. 

in  case  of  dismissal  of  suit,  clerk  to  issue  proper,  S.  C.  Rule  24,  No.  5, 
p.  342. 

final,  Admiralty  Rule  21,  p.  323. 

PRO  CONFESSO,  Admiralty  Rule  29,  p.  326. 

when  matter  of  exception  taken,  269. 
PROCTORS, 

fees  of,  293. 

PRO  FORMA, 

decrees.  Supreme  Court  has  jurisdiction  of,  307. 
PROHIBITION, 

requisites  of  petition  of  writ  of,  250. 

Supreme  Court  may  issue,  to  Dbtrict  Court.    (See  U.  S.  Rev.  Stat.  688.) 


INDEX.  485 

PROOF.    See  Evidencb. 

of  misconduct,  onus  of,  173. 

PROOF  OF  AGREEMENT.    Sec  Agkeement. 

for  abandoiimeut  of  salvage.  111,  112. 
PROPERTY.    Sec  Public  Pkopekty. 

sales  of,  how  made.  Admiralty  Rule  41,  p.  330. 
PROPERTY  RISKED, 

effect  of,  on  amount  of  salvage  award,  87,  99. 

PROPERTY  SAVED. 

value  of,  as  affecting  rate  of  salvage,  106. 
PROPORTION  OF  PROPERTY  SAVED, 

to  amount  awarded.    See  Appobtionment. 
PROVISIONS, 

seaman  entitled  to  double  wages,  if  ship  sail  without  qoautitj  of,  required 
by  statute,  238. 
PUBLIC  PROPERTY, 

is  liable  to  contribute  to  salvage,  170. 

releasing,  from  attachment.     (See  U.  S.  Rev.  Stat.  3753.) 

payment  of  stipulation  for.     (See  U.  S.  Rev.  Stat.  3754.) 

preservation,  sale,  or  collection  of.     (See  U.  S.  Rev.  Stat.  3755.) 

Q. 

qUANTUM  MERUIT, 

not  the  guide  in  awarding  salvage,  88,  93* 
QUASI  CONTRACTS, 

when  of  admiralty  jurisdiction,  10. 
QUASI  DERELICT, 

liberal  salvage  compensation  in,  80. 

B. 

RACING.     See  Colusion. 
RAFT, 

of  lumber,  15, 

whether  within  admiralty  jurisdiction,  11. 
RANSOM, 

contract  of,  within  admiralty  jurisdiction,  29. 
RATE, 

of  allowance  in  salvage  cases,  87,  90,  91,  107,  144,  170. 

of  allowance  in  collision  cases,  227.  228. 

of  allowance  in  cases  of  derelict,  81,  82,  103. 

of  speed  of  steamers,  210. 
RECAPTURE, 

salvage  in  case  of,  53. 

salvage  in  lieu  of  prize-money,  in  cases  of,  49. 


486  INDEX. 

RECEIPT, 

bill  of  lading  considered  as,  267. 

proof  by,  is  subject  to  rebuttal,  267. 

for  salvage  by  master  and  owner,  140. 

by  ignorant  salvor  will  be  opened  up,  267. 
RECORD, 

on  appeal,  what  it  shall  contain,  316  ;  Admiralty  Rule  52,  p.  334.     (See 
also  S.  C.  Rule  8.) 

on  appeal  from  District  Court,  to  be  made  up  by  the  clerk.  Admiralty 
Rule  52,  p.  334 

RECOVERY, 

right  of,  236,  238,  246,  247. 

proceedings  for,  in  suits  for  salvage,  246. 

of  damages  in  case  of  collision,  224,  227,  228. 
REFEREES, 

question  of  fact  may  be  submitted  to,  274. 

REFERENCE, 

to  commissioner,  292 ;  Admiralty  Rule  44,  p.  331. 

REFUSAL, 

to  assist  in  salvage,  effect  of,  on  proportion,  143. 
of  seaman  to  work  on  Sunday,  231. 

REGISTRY, 

proceeds  of  sale  when  paid  into  the,  281 ;  Admiralty  Rule  41,  p.  330. 

admiralty  jurisdiction  has  no  regard  to,  38. 

payment  of  unappealable  amounts  out  of  appealable  amount  in,  282. 
REHEARING, 

when  will  be  refused,  279. 

when  may  be  granted,  280. 

for  further  proof  or  to  supply  omissions,  270. 

is  not  subject  of  appeal,  296. 

on  rescission  of  decree,  court  may  grant,  when.  Admiralty  Rule  40,  p.  330. 

RELEASE, 

parties  who  wish  to  effect,  of  property  must  file  sworn  claim,  255. 

REM,  IN.    See  Forms. 

in  proceedings,  the  process  shall  be  by  warrant  of  arrest,  when,  Admiralty 

Rule  9,  p.  319. 
in  suits,  court  may  order  the  property  to  be  delivered  to  the  marshal, 

when,  Admiralty  Rules  8,  38,  pp.  319,  329. 
forms  of  proceedings,  Nos.  1-20,  pp.  355-386. 
actual  seizure  necessary  in  a  suit,  22,  23. 

REMEDY.     See  Admiralty  Rules. 
of  master  for  wages,  202. 

of  seamen  for  wages,  239 ;  Admiralty  Rule  13,  p.  321. 
for  neglect  to  furnish  provisions  to  a  passenger,  No.  13,  p.  376. 
for  short  allowance  of  bread  to  seaman.  No.  17,  p.  381. 


INDEX.  487 

REMNANTS  AND  SURPLUSES.    (See  Zane  p.  The  President,  4  Wash. 
C.  C.  453.) 

REMOTENESS, 

of  damage  to  salving  vessel,  100. 
REMOVAL, 

from  marshal's  custody,  33. 

REPAIRS, 

are  within  jurisdiction,  19,  28. 

when  owners  of  salving  vessel  entitled  to  deduct  costs  of,  149-150. 

furnishers  of,  192-194. 

contract  for,  creates  a  lien,  194. 

allowance  for,  in  cases  of  collision,  228. 

how  libellant  may  proceed  for,  Admiralty  Rule  12,  p.  321. 

to  be  made  at  a  wharf,  contracts  for,  are  maritime,  p.  194. 

to  vessels  in  foreign  port,  28. 

to  domestic  ship,  28. 
REPLICATION, 

not  allowed,  254;  Admiralty  Rule  51,  p.  333. 
RESCINDING  DECREE, 

in  discretion  of  the  court.  Admiralty  Rule  40,  p.  330. 
RESCUE, 

from  pirates  a  salvage  service,  46,  53. 

from  enemy  in  salvage,  46. 

from  mutinous  slaves,  46. 
RESIDENCE, 

of  owuer  test  of  character  of  vessel,  192. 
RESPONDENTIA.  BONDS, 

within  admiralty  jurisdiction,  19. 
RESPONSIBILITY, 

of  owners  and  liability  of  vessel,  convertible,  224,  225. 
RESTITUTIO  IN  INTEGRUM, 

in  collision,  227,  228. 
REVENUE  OFFICERS, 

salvage  by  American,  73. 
REVENUE  SEIZURES, 

United  States  District  Court  has  jurisdiction  of,  30. 
REVIEW, 

libel  of,  when  court  may  entertain,  280. 
REVISED  STATUTES  OF  THE  UNITED  STATES, 

sections  applicable  in  admiralty,  574,  p.  345  ;  631,  p.  344  ;  858,  p.  345 
862,  p.  346 ;  863,  p.  346 ;  864.  p.  348 ;  865,  p.  348 ;  866,  p.  349 
867,  p.  349;  868,  p.  349;  869,  p.  350;  870,  p.  351;  875,  p.  351 
940,  p.  352  ;  941,  p.  352  ;  1007,  p.  344 ;  1008,  p.  345. 

appeals  from  District  Court.    See  sect.  631,  p.  344. 

tvpertedeaa.     See  sect.  1007,  p.  344. 

appeals  to  Supreme  Court.    See  sect.  1008,  p.  345. 


488  IXDEX. 

KEVISED  STATUTES  OF  THE  UNITED  STATES  — continued. 
District  Courts  always  open,  for  what  purposes.     See  sect.  574,  p.  345. 
witness,  wlien  not  excluded.     See  sect.  858,  p.  345. 
depositions  de  bene  esse.     See  sect.  863,  p.  346 ;  sect.  864,  p.  348 ;  sect. 

865,  p.  348. 
dedinius  potestatem  and  in  perpetuam  ret  memoriam.     See  sects.  866-868, 

p.  349  ;  sect.  869,  p.  350  ;  sect.  870,  p.  351. 
letters  rogatory.     See  sect.  875,  p.  351. 
court  may  make  orders  in  vacation.     See  sect.  940,  p.  352. 
when  marshal  shall  stop  process.     See  sect.  941,  p.  352. 
appeal  to  Supreme  Court  within  two  years,  when.      See  sect.  1008, 

p.  352. 

REWARD.     See  Apportionment. 

in  salvage  services,  principles  of,  36  ei  seq. 
proportion  of,  allowed  in  salvage  cases,  87  c^  seq. 

RETURN, 

of  master  and  crew,  in  question  of  derelict,  78-80. 

RIGHTS, 

of  seamen,  231. 

to  damages,  236. 

what  essential  to  establish,  to  salvage,  37. 

RISK, 

to  salvors,  effect  of,  100,  101. 
not  essential  in  salvage,  100,  101.  • 

to  tug,  effect  of,  on  claim  to  salvage,  69. 
as  affecting  salvage  award,  100,  101. 

RIVAL  SALVORS.    See  Salvoes. 

RIVER  NAVIGATION, 

temporary  interruption  of,  does  not  affect  character  of  stream,  5. 

RIVERS, 

public,  admiralty  has  jurisdiction  over,  5. 

Western,  less  salvage  award  on,  than  on  the  high  seas,  134. 

salvage  in,  134. 

ROBBERY, 

by  salvors,  effect  of,  174. 

American  law  as  to  effect  of,  on  salvors*  claim,  174. 

by  salvor,  effect  of  negotiation  on,  175. 

RULE, 

no  strict,  can  be  laid  down  as  to  salvage  award,  87. 

RULES, 

of  pleading  must  be  complied  with,  260. 
of  United  States  Supreme  Court  in  Admiralty,  317-338. 
of  practice  in  United  States  Supreme  Court,  339-343. 
of  navigation  not  inflexible,  216. 


INDEX.  489 

RULES  —  eontinued. 
Admiralty,  by  Ukited  States  Sdprbme  Court. 

1.  Process,  issue  and  service  of,  llule  1,  p.  317. 

2.  Mesne  process,  in  suits  in  personam,  nature  of,  Rule  2,  p.  317. 

3.  Bail,  summary  process  in  suits  in  personam,  Rule  3,  p.  318, 

4.  Attachment,  when  may  be  dissolved,  Rule  4,  p.  318. 

5.  Bonds  or  stipulations,  how  taken,  Rule  5,  p.  318. 

6.  Bail,  when  reduced,  new  sureties,  when  may  be  required,  Rule  6, 

p.  319. 

7.  Arrest,  when  warrant  may  issue,  Rule  7,  p.  319. 

8.  Tackle,  and  other  appurtenances,  how  possession  obtained,  Rule  8, 

p.  319. 

9.  In  suits  in  rem,  process,  nature  of,  Rule  9,  p.  319. 

10.  Perishable  goods,  when  may  be  sold,  or  may  be  delivered  to  claim- 

ant, Rule  10,  p.  320. 

11.  Ship,  when  may  be  delivered  to  claimant,  Rule  11,  p.  320. 

12.  Suits  by  material-men,  how  libellant  may  proceed,  Rule  12,  p.  321. 

13.  Mariner's  wages,  suits  for,  how  libellant  may  proceed,  Rule  13,  p.  321. 

14.  Pilotage,  suits  for,  how  libellant  may  proceed,  Rule  14,  p.  322. 

15.  Collision,  how  libellant  may  proceed  in,  Rule  15,  p.  322. 

16.  Assault  and  battery,  suits  for.  Rule  16,  p.  322. 

17.  Hypothecation,  suits  founded  on.  Rule  17,  p.  322. 

18.  Bottomry  bonds,  suits  on.  Rule  18,  p.  322. 

19.  Salvage,  suits  for.  Rule  19,  p.  323. 

20.  Petitory  aud  possessory  suits.  Rule  20,  p.  323. 

21.  Final  decrees,  how  enforced.  Rule  21,  p.  323. 

22.  Informations  and  libels  of  information,  Rule  22,  p.  324. 

23.  Instance  causes,  libels  in,  Rule  23,  p.  324. 

24.  Amendments  to  libels  and  informations.  Rule  24,  p.  325. 

25.  Costs,  security  for,  when  required.  Rule  25,  p.  325. 

26.  Claimant  of  property,  verification  and  stipulation.  Rule  26,  p.  326. 

27.  Answer,  requisites  of.  Rule  27,  p.  326. 

28.  Exception  to  answer,  for  what.  Rule  28,  p.  326. 

29.  Default,  proceedings  thereon.  Rule  29,  p.  326. 

30.  Further  answer,  may  be  compelled.  Rule  30,  p.  327. 

31.  Allegations,  which  defendant  may  object  to  answer.  Rule  31,  p.  327. 

32.  Interrogatories  propounded  to  libelant,  Rule  32,  p.  327. 

33.  Answer  to  interrogatories  by  libellant  or  by  defendant.  Rule  33, 

p.  328. 

34.  Interrenor,  to  give  stipulation.  Rule  34,  p.  328. 

35.  Stipulations  in  Rule  35  to  be  as  prescribed  by  Rule  5,  as  amended. 

Rule  35,  p.  329. 

36.  Exceptions,  may  be  taken,  to  what,  and  effect  of,  Rule  36,  p.  329. 

37.  Foreign  attachment,  —  garnishee.  Rule  37,  p.  329. 

38.  Freight  or  other  proceeds  of  property,  when  may  be  ordered  to  be 

brought  into  court.  Rule  38,  p.  329. 

39.  Dismissal  of  suit,  when.  Rule  39,  p.  330. 

40.  Rescinding  decree,  when,  Rule  40,  p.  330. 


490  INDEX. 

BULES  —  continued. 

41.  Property,  how  sold,  and  proceeds,  how  disposed  of.  Rule  41,  p.  330. 

42.  Money  in  the  registry,  how  disposed  of,  Ride  42,  p.  330. 

43.  Intervenor,  pro  interesse  sua.  Rule  43,  p.  331. 

44.  Commissioner,  reference  to,  when,  Rule  44,  p.  331. 

45.  Appeals  from  District  to  Circuit  Court,  Rule  45,  p.  331. 

46.  Practice,  District  and  Cii'cuit  Courts,   when  to  regulate,  Rule  46, 

p.  332. 

47.  Bail,  when  taken,  and  imprisonment  for  debt,  where  abolished,  Rule 

47,  p.  332. 

48.  Twenty-seventh  rule,  when  it  shall  not  apply,  Rule  48,  p.  332. 

49.  Further  proof  in  Circuit  Court  on  appeal,  Rule  49,  p.  332. 

50.  Oral  evidence  in  Circuit  Court  on  appeal.  Rule  50,  p.  333. 

51.  RepUcation  not  allowed,  Rule  51,  p.  333. 

52.  Records  on  appeal  to  Circuit  Court,  how  made  up.  Rule  52,  p.  334. 

53.  Cross-libel,  respondent  to  give  security.  Rule  53,  p.  335. 

54.  Limitation  of  liability,  how  claimed.  Rule  54,  p.  336. 

55.  Proof  of  claim  to  be  made  before  a  commissioner.  Rule  55,  p.  337. 

56.  Owner  may  contest  liability.  Rule  56,  p.  337. 

57.  Jurisdiction,  in  what  District  Court,  Rule  57,  p.  337. 

58.  Rules  relating  to  limitation  of  liabiUty  shall  apply  in  Circuit  Court, 

Rule  58,  p.  338. 

59.  Claimant  may  pray  process  against  another  vessel.  Rule  59,  p.  338. 
Of  the  United  States  Supreme  Court,  applicable  in  Admiralty. 

8.  Records,  to  what  confined.  Amendment  to  Rule  8,  p.  339. 

9.  Docketing  the  cause  and  filing  the  record.  Rule  9,  p.  339 
12.   Further  proof,  shall  be  by  commission,  Rule  12,  p.  340. 

24.   Costs  on  dismissal,   on  affirmance,  and  on  reversal.  United  States 

exempt,  Rule  24,  pp.  341,  342. 
29.  Supersedeas  bonds  in  Circuit  Court,  Rule  29,  p.  342. 

s. 

SAILMAKERS, 

employed  on  shipboard,  are  seamen,  169,  234. 

SAILS, 

when  delivered  into  custody  of  the  marshal.  Admiralty  Rule  8,  p.  319. 

SAIL-VESSELS, 
what  are,  216. 
meeting  of,  218. 
crossing  of,  218. 
meeting  steamer,  218,  219. 
duty  of,  to  avoid  collision,  219. 

SALE, 

of  perishable  goods,  when  may  be  made,  255  ;  Admiralty  Rule  10,  p.  320. 

of  salvage,  when  void,  155,  162. 

of  ship,  when  may  be  ordered.  Admiralty  Rule  11,  p.  320. 


INDEX.  491 

SALE  —  continued. 
judicial,  201. 
of  property,  by  whom  made,  281 ;  Admiralty  Rule  41,  p.  330. 

SALVAGE, 

Ufa,  38,  48,  49,  169. 

of  cargo,  42,  45. 

definitiou  of,  36,  37. 

arises  under  ihe  jus  gentium,  22. 

in  insurance,  means  property  saved,  36. 

in  admiralty,  means  reward,  36. 

\sjus  liquidissimum,  74. 

measure  of  reward  in,  87. 

by  naval  marine,  same  as  by  private  marine,  74. 

distress  essential  to,  38. 

extent  of  distress  in,  38. 

apprehension  of  danger  in,  38. 

where  danger  imminent  though  not  actual,  39. 

vessel's  position  as  evidence  of  peril  in,  39. 

acceptance  of  assistance  of  strangers  in,  41. 

actual  assistance  must  have  been  rendered  in,  39. 

pilotage  is,  when,  68. 

success  essential  to,  39,  40. 

as  related  to  tonnage,  68. 

takes  precedence  of  wages,  when,  186, 187, 196. 

American  law  as  to  success  in,  39. 

order  in  which  claims  in,  paid,  196, 197. 

where,  partly  performed,  42. 

takes  preference  of  prior  maritime  liens,  197. 

where  effort  in,  abandoned,  42. 

transshipment  in,  42. 

advice  in,  43. 

in  case  of  collision,  43,  44. 

by  supplying  master  and  men,  44. 

by  saving  from  fire,  45. 

by  saving  cargo  ashore,  45. 

sale  of,  when  void,  155,  162. 

Trench  law  of,  188. 

in  saving  drifting  timber,  45. 

in  bringing  vessel  into  port,  45. 

in  furnishing  anchor  and  chain,  45. 

in  floating  grounded  vessel,  45. 

in  raising  sunken  vessel,  45. 

in  rescuing  from  pirates,  46,  53. 

in  rescuing  from  mutinous  slaves,  46. 

in  rescuing  from  enemy,  46. 

military,  49-52. 

when,  is  general  average,  168. 


492  INDEX. 

SALVAGE  —  continued. 

of  vessel,  &c.,  by  privateers.     (See  U.  S.  Rev,  Stat.  933  ) 

mails  not  liable  to,  The  Schooner  Merchant.     (See  2  Parsons,  S.  &  A. 

303;  Marvin,  132.) 
seamen  cannot  abandon  claim  for,  U.  S.  Rev.  Stat,  4535 ;  pp.  155-160, 

162. 
effect  of  ignorance  of  master  in,  43. 
American  decisions  as  to  crew  claiming,  74. 
will  not  lie  for  goods  on  land,  247. 

steam-vessels  encouraged  in,  by  liberal  compensation,  90,  144. 
by  and  to  steam-vessels,  reward  for,  higher  than  for  sailing-vessels,  90. 
low  rate  of,  allowed,  when,  91, 
to  entitle  a  party  to,  possession  must  be  lawful,  105. 
upon  freight,  how  treated,  107,  170, 
effect  of  local  custom  as  to  seaman's  claim  for,  163. 
customs  duties  should  be  paid  before  computing  of,  170. 
United  States  property  liable  to  contribute  to,  170. 
in  whaling  and  fishing  voyages,  crew  contribute,  170, 
evidences  of  debt,  value,  or  title  not  subjects  of,  170, 
money  found  on  drowned  passengers  not  subject  of,  170. 
clothing  of  master  and  crew  not  liable  to,  170,  171. 
bullion  in  trunk  of  passenger  liable  for,  171 
when  owners  personally  liable  for,  246, 
claim  for,  entitled  to  priority  over  claim  of  mortgages,  198, 
no  precedent  of  common-law  suit  for,  on  the  high  seas,  247. 

SALVAGE  AGREEMENT, 

not  rendered  void  by  false  representations  of  value  of  cargo,  112. 

suppression  of  information  as  to  vessel's  condition  may  vitiate,  112, 

master  may  bind  owner  by,  when,  113, 

if  tainted  with  fraud,  will  not  be  recognized  as  against  the  owner,  113. 

ignorance  of  a  foreign  shipmaster  will  affect,  113, 

is  binding,  when  reasonable,  and  without  fraud  or  mistake,  113, 

made  by  master  binds  the  vessel,  but  not  the  crew,  113,  121. 

to  throw  the  whole  expense  on  cargo,  null,  113,  175. 

when  reckless,  not  recognized,  114. 

will  not  be  enforced,  if  iniquitous,  114,  119, 

for  salvage  of  ship  alone,  will  not  be  sanctioned,  120, 175. 

for  recovery  of  cargo  of  sunken  vessel  sustained,  120. 

will  not  be  upheld,  if  advantage  taken  of  ignorance  or  distress,  120,  121, 

124. 
will  not  be  upheld,  if  unjust  or  inequitable,  121. 
binds  only  parties  concurring  in  it,  122, 

will  not  be  set  aside  merely  on  account  of  hard  bargain,  122, 124. 
will  not  be  affected  by  subsequent  change  of  weather,  122. 
onus  probandim,  123. 
when  set  up  in  bar  of  claim,  123,  128. 
will  not  be  upheld,  if  exorbitant,  124,  154. 


INDEX.  493 

SAIiVAGE  AGREEMENT  — <ro»/i«««rf. 
presumed  prima  facie  to  be  fair,  125. 

for  specific  coini)ensatiou  does  not  alter  nature  of  service,  126. 
iustauces  of  construction  of,  127, 128. 
made  by  master  binds  insurer,  128. 
abandonment  of,  123. 
when,  pleaded,  amount  must  be  paid  into  court,  123. 

SALVAGE  AWARD, 

amount  of,  in  discretion  of  court,  87,  171. 

may  be  for  more  than  is  demanded,  89. 

steamers  entitled  to  greater,  than  other  vessels,  94,  149,  152. 

steamers  employing  fire-extinguishing  gases  given  more  liberal,  95. 

time,  as  an  clement  in  relation  to,  96-98. 

value  of  property  risked  by  salvors  considered  in  fixing,  99. 

added  to,  for  loss  or  damage  sustained  by  salvors,  99. 

added  to,  for  extra  expenses  incurred  by  salvors,  99,  108. 

added  to,  for  loss  of  fishing  or  sealing  season,  100,  151. 

added  to,  for  loss  of  cargo  of  ice,  100. 

added  to,  for  payments  in  respect  of  the  damage  or  detention  of  the  salving 

vessel,  100. 
risk  as  afiecting,  100,  101. 

as  affected  by  deviation,  101-103.  • 

as  affected  by  value  of  property  salved,  106. 
in  case  of  derelict,  81,  82,  103. 
as  in  case  of  derelict,  where  abandonment  and  salvage  cargo  simultaneous, 

80. 
increased,  when  services  great,  and  value  saved  small,  90. 
in  proportion  to  number  of  vessels  actually  required,  85. 
no  strict  rule  as  to  amount  of,  can  be  laid  down,  87. 
amount  of,  increased  as  incentive  and  premium,  89,  171. 
tendency  now  to  lower  amount  in,  128. 
instances  of,  130-138,  144,  147,  148. 
less  on  Western  rivers  than  on  the  high  seas,  134. 
apportioned  among  the  parties  by  the  court,  135, 
given  to  pilot,  138, 
given  to  diver,  138, 

receipt  for,  by  master  and  owner,  effect  of,  140. 
to  navy  officers  and  crew,  lil. 
decreed  in  favor  of  jiart  of  crew,  when,  142, 143. 
interest  on,  251. 
when  salving  and  salved  vessels  belong  to  same  owner,  151,  251. 

SALVAGE  SERVICE, 

is  of  admiralty  jurisdiction,  29. 
ingredients  of,  37,  38. 
lying  by  vessel  as,  41. 
bringing  derelict  into  port  is,  45. 
rendered  from  the  land,  76. 


494  INDEX. 

SALVAGE  SERYIC^  — continued. 

exorbitant  contracts  for,  will  not  be  enforced,  88. 

as  to  suits  for,  to  ships  of  war,  94. 

custom  authorizes  master  to  employ  vessel  and  crew  in,  123, 139. 

under  express  contract,  126. 

has  priority  over  general  average,  169. 

going  to  ship  is  a  part  of,  187. 

ferry-boat  on  the  Ohio  River  may  be  the  subject,  14. 
SALVOR, 

bar-keeper  decreed,  68. 

ship-owner  as,  59,  61. 

hirer  of  ship  as,  60,  61. 

boat-owner  as,  62. 

has  no  right  to  create  lien  on  vessel,  when,  187. 

owner  of  cargo,  when  may  be,  62,  63, 139. 
SALVORS, 

duties  and  obligations  of,  180,  181. 

all  entitled  to  share  in  reward,  140. 

risk  to,  not  essential  in  salvage,  38. 

rights  of,  not  affected  by  temporary  leaving,  186. 

where,  engaged  by  ship,  41. 

claim  of,  entitled  to  priority  over  subsequent  debts,  when,  198. 

communicating  with  salving  ship,  43. 

different  sets  of,  39,  77,  82,  84,  85. 

who  may  be,  54,  55. 

crew  generally  may  not  be,  55. 

suits  by,  may  be  in  rem  or  in  personam,  21,  247. 

if  vessel  abandoned,  crew  may  be,  55. 

bound  to  avail  themselves  of  necessary  assistance,  83. 

detention  of  derelict  by,  181. 

rival,  distribution  between,  84-86. 

shares  of,  dying  before  apportionment,  163. 

corporations  as,  encouraged  by  liberal  reward,  94. 

crew,  when  acting  outside  Limits  of  duty,  as,  55. 

passengers  as,  139. 

not  entitled  to  any  specific  proportion  of  property  saved,  106. 

to  share  in  depreciation  of  saved  property,  when,  107. 

seamen  as,  55. 

bound  by  contract  for  specified  sum,  11. 

bound  by  contract  dependent  on  success,  11. 

apprentices  as  salvors,  139,  152. 

shares  not  claimed  by,  revert  to  owners,  153. 

not  bound  by  settlement  by  master,  without  their  consent,  248. 
SALVORS,  FIRST, 

favored,  78,  82,  83. 
SALVORS,  SEAMEN  AS, 

of  their  own  vessel,  231. 

of  ships  belonging  to  same  owner,  231. 


INDEX.  495 

SALVORS,  SECOND, 

exclusion  of,  82. 

when  assistance  beneficial,  83. 

take  salvage,  when,  83,  84. 
SCANDAL, 

surplusage,  irrelevancy,  or  impertinence,  exceptions  may  be  taken  for, 
Admiralty  Rule  36,  p.  329. 
SCOW. 

when  subject  to  admiralty  jurisdiction,  10, 11. 
SEA.    See  Higu  Seas. 
SEALING.    See  FisHiyo  aud  Sealing  Season. 

SEAMEN.     See  Wages. 

contract  with  each  distinct,  though  signed  by  several,  235. 

form  of  articles  with,  235. 

who  are,  232,  234,  239-241. 

lien  of,  postponed  to  that  of  libellant,  in  case  of  collision,  197. 

as  salvors,  55-57. 

rights  and  obligations  of,  231. 

cannot  abandon  claim  for  salvage,  155-162.     (See  also  U.  S.  Rev.  Stat. 

4535.) 
power  to  contract,  234. 

entitled  to  three  months'  extra  wages,  when,  237. 
where  no  wages  are  stipulated,  235. 
refusal  of,  to  work  on  Sunday,  231. 
wages  not  subject  of  garnishment,  when,  231. 
contracts  with,  generally  required  to  be  in  writing,  235. 
offences  and  punishments  of.     (See  U.  S.  Rev.  Stat.  4596.) 
penalty  for  shipping  without  written  articles,  235. 
how,  may  proceed  for  wages.  Admiralty  Rule  13,  p.  321. 
how  their  contract  may  be  dissolved,  55. 

cannot  proceed  against  government  vessels,  home  or  foreign,  241. 
what  contract  with,  is  presumed  to  include,  235. 
court  bound  to  give  construction  most  favorable  to,  in  contracts,  236. 
judicial  power  exercised  in  defence  of,  240. 
claim  of,  for  salvage,  effect  of  assignment  on,  236. 
claim  of,  for  wages,  is  personal  privilege,  not  assignable,  239. 
can  recover  damages  for  assault  and  battery  by  oflBcers,  236. 
have  lien  on  vessel,  freight,  and  proceeds,  for  wages,  239. 
may  contract  for  lays  or  shares,  236. 
double  wages  allowed  to,  when,  238. 
wages  of,  in  what  currency  to  be  paid,  236. 
navy  ration  rule  of  allowance  to,  238. 
wages  of,  when  owners  not  bound  for,  237. 
effect  of  capture  on  contract  of,  238. 
wages  of,  when  underwriters  liable  for,  237. 
dying  during  voyage,  wages  due  to  time  of  decease,  238. 
entitled  to  wages  for  full  voyage,  when,  237. 


496  INDEX. 

SEAMEN  —  continued. 

entitled  to  full  wages,  •when,  237. 

entitled  to  whole  wages,  when  disabled  by  sickness,  237. 

SECOND  LIBELLANTS, 
awarded  salvage,  74. 

SECUNDUM  ALLEGATA  ET  PROBATA, 

decree  must  be,  258. 
SECURITY.     See  Stipulation. 

when  new,  may  be  required.  Admiralty  Rule  6,  p.  319. 

in  eases  of  perishable  goods.  Admiralty  Rule  10,  p.  320. 

on  delivery  of  ship  to  claimant.  Admiralty  Rule  11,  p.  320. 

for  appearance  and  abiding  by  orders  of  court,  Admiralty  Rule  3,  p.  318. 

for  attached  property  to  have  attachment  dissolved,  Admiralty  Rule  4, 
p.  318. 

for  costs,  when,  Admiralty  Rule  25,  p.  325. 

by  intervenor,  when.  Admiralty  Rule  34,  p.  328. 

party  claiming  property  to  furnish,  when,  Admiralty  Rule  26,  p.  336. 
SEDENTE  CURIA, 

appeals  must  be  brought,  304. 
SEIZURE, 

by  wan-ant  of  arrest,  Admiralty  Rule  9,  p.  319. 

jurisdiction  of,  23,  33. 
SERVICES, 

when  salvage,  37,  38,  41,  45,  76,  126,  187. 

when  not,  37  et  seq. 

of  pilot,  when  deemed  salvage,  43,  65-67. 

of  steam-tug,  when  held  salvage,  46,  71-73. 

must  be  maritime  to  secure  lien,  194. 
SET-OFE.    See  Cross-Libel. 

in  claim  for  proportion  of  salvage,  163. 

loss  by  seaman's  crime  may  be,  240. 
SHARE, 

who  entitled  to,  in  salvage  award,  139. 

larger,  given,  when,  151. 
SHIP.     See  Vessel. 

suit  for  possession  of,  by  co-tenant,  Eorm  35,  p.  410. 

suit  by  part-owner  for  sale  of,  Form  36,  p.  411. 

suit  by  co-tenant  for  safe  return  of,  Form  37,  p.  412. 

when  delivered  to  claimant.  Admiralty  Rule  11,  p.  320. 

■when  may  be  sold,  Admiralty  Rule  11,  p.  320. 
SHIP  AGENT, 

claim  for  salvage  by,  when  it  will  lie,  73. 
SHIP  AGROUND, 

floating  a,  45. 

SHIP  AND  CARGO, 

contribution  to  salvage  by,  139, 165, 169. 


INDEX.  497 

SHIP  AND  FREIGHT, 

when  bound  bjr  bottomry,  22,  322. 

SHIP  ALONE. 

agreement  for  salvage  on,  void,  120, 175. 

SHIP,  APPAREL  OF, 

within  admiralty  jurisdiction,  19. 
SHIP-BROKER, 

has  no  lien,  when,  203. 

SHIP-BUILDER, 

whether,  services  maritime,  14, 199,  200. 

SHIP-CARPENTER, 

when  he  has  no  lien  for  repairs,  194. 

SHIP,  DOMESTIC, 

lien  on,  28,  193,  198 ;  Admiralty  Rule  12,  p.  321. 

SHIP-KEEPER, 

in  port,  has  no  lien,  205. 

of  domestic  vessel,  cannot  sue  in  personam  in  admiralty,  205. 

SHIP-OWNER.    See  Apportionment. 
when  entitled  to  claim  salvage,  59,  60. 
has  a  lien  on  cargo  for  freight,  205. 

limitation  of  liabiUty  of.     (See  U.  S.  Rev.  Stat.  4282,  4283.) 
liable  for  torts  of  master,  when,  32. 

SHIPPER, 

when  and  when  not  entitled  to  share  iu  salvage  award,  62,  63,  139. 

SHIPS  AND  VESSELS, 

limitation  of  liability  of  owners  of.     (See  U.  S.  Rev.  Stat.  4282,  4289.) 

form  of  proceedmg  under   act  limiting  liability  of  owners  of.  No.  65, 
p.  427. 
SHIPWRIGHT.    See  Material-men. 

when  he  has  no  lien  for  repairs,  194. 
SHIP-YARD, 

claim  of  owner  of,  15. 
SIGNAL, 

ambiguous,  when,  is  signal  of  distress,  66-68. 

lights,  212,  213. 

of  distress,  68. 
SIR  R.  J.  PHILLIMORE, 

on  tender,  261. 
SPECIAL  CIRCUMSTANCES, 

as  affecting  rules  of  navigation,  217. 
SPECIE, 

salvage  of,  165-168. 
SPEED, 

of  steamers,  regulation  of,  210. 

82 


498  INDEX. 

SPOLIATION, 

is  of  admiralty  cognizancej  29. 
by  force,  29. 

STATE  COURT, 

has  jurisdiction,  where  express  promise  to  pay  salvage,  24, 
may  entertain  bill  in  equity  to  redeem  goods  from  lien,  when,  24. 

STATE  LAWS, 

cannot  affect  admiralty  jurisdiction,  24. 
cannot  affect  salvage,  170. 
may  create  liens  on  domestic  vessels,  when,  199. 
cannot  provide  for  their  enforcement  ia  rem,  199. 
as  applicable  to  evidence,  266. 

STATES, 

of  the  United  States  foreign  to  each  other,  when,  192. 
admiralty  jurisdiction  cannot  be  conferred  on  the  courts  of  the,  L 

STATUTE  OE  JUNE  7,  1872, 

does  not  apply  to  British  vessels,  232. 

STATUTES.    See  Revised  Statutes  of  the  United  States. 

STAY  OE  EXECUTION, 

or  discharge  of  property,  255. 

STAY  OE  PROCEEDINGS, 

where  equitable  action  of  nullity  has  been  instituted,  246. 

STEAMBOATS, 

to  sound  whistles  in  fogs,  211, 

STEAMERS.     See  Collision. 

rules  of  navigation  as  to,  216  ei  seq. 

amount  awarded  to,  for  salvage  services,  90. 

time  occupied  by,  in  rendering  salvage  services,  96-98. 

apportionment  of  salvage  to  salving,  149. 

stranded,  when  service  to,  is  not  salvage  service,  47. 

duties  of,  to  avoid  collision,  209. 

encouraged  by  liberal  compensation  in  salvage,  90,  144. 

salvage  by  and  to,  higher  than  for  sail-vessels,  90, 

STEAM-TUG, 

services  of,  when  salvage,  46,  71-73. 

STEAM-VESSELS.    See  Steamers, 

what  are,  216. 
STEAM-WHISTLE, 

to  be  sounded  in  fogs,  211. 
STEVEDORES, 

as  to  admiralty  jurisdiction  over  suits  by,  194. 

as  to  lieu  of,  194. 
STEWARDS, 

are  deemed  mariners,  234, 


INDEX.  499 

STIPULATION.    See  Costs  and  Fees. 
before  whom  may  be  ockaowledged,  235. 
how  given,  Admiralty  Rules  5,  34,  35,  pp.  318,  328,  329. 
on  delivery  of  perishable  goods  to  claimant.  Admiralty  Rule  10,  p.  320. 
on  delivery  of  ship  to  claimant,  Admiralty  Rule  11,  p.  320. 
for  costs  to  be  given  by  claimant.  Form  No.  48,  p.  418 ;  Admiralty  Rule 

26,  p.  325. 
for  costs  and  expenses  to  be  given  by  defendant,  Admiralty  Rule  25, 

p.  325. 
for  property  without  process,  by  consent.  Form  No.  58,  p.  422. 
consent  that  vessel  be  discharged  on,  Form  No.  59,  p.  422. 
for  value.  Forms  No.  61,  68,  pp.  423,  431. 
for  safe  return  of  vessel.  Form  No.  64,  p.  426. 
for  appraised  value  of  vessel.  Form  No.  68,  p.  431. 
if  forfeited,  process  may  issue  against  goods,  chattels,  or  real  estate  of 

principal  or  sureties.  Admiralty  Rules  3,  21,  pp.  318,  323. 
summary  process  on.  Admiralty  Rules  3,  4,  p.  318. 
value  in,  binding,  303. 
represents  the  res,  303. 
as  to,  by  libellant  for  costs  and  expenses,  255. 
when  new  sureties  required,  303 ;  Admiralty  Rule  6,  p.  319. 
forms  of  justification  of,  Nos.  48,  61-63,  pp.  418,  424-426. 
form  of,  to  marshal,  on  arrest  of  person,  No.  63,  p.  425. 
form  of,  under  section  941  U.  S.  Rev.  Stat.,  No.  62,  p.  424. 
authority  of  agent  or  consignee  in,  255. 
Circuit  Court  and  District  Court  may  make  rules  as  to,  when.  Admiralty 

Rule  46,  p.  332. 
neglect  to  name  owners  in,  254. 
as  to  supersedeat  bonds  in  the  Circuit  Court,  S.  C.  Rule  29,  p.  342 ;  U.  S. 

Rev.  Stat.  1007,  p.  344. 
under  delivery  bond  in  admiralty  proceedings,  U.  S.  Rev.  Stat.  941,  p.  352, 
release  on,  without  formal  claim,  254. 
seamen  not  required  to  give,  when,  2S8. 
for  payment  of  seaman's  wages,  236. 
practice  as  to,  254. 
liability  in,  254. 

STRANGERS, 

acceptance  of  help  from,  as  evidence  of  distress,  41. 
STREAMS, 

authority  of  Congress  over,  8. 
STRICTI  JURIS, 

maritime  lien  is,  190, 194,  197. 

SUBJECT-MATTER, 

in  contracts,  jurisdiction  limited  by,  14. 

SUBMISSION  TO  AWARD, 
by  parties,  33. 


600  INDEX. 

SUBPCENAS, 

for  witnesses,  how  regulated,  268. 
SUCCESS, 

of  salvors'  eiforts  essential,  39,  40. 
SUIT.    See  Jukisdiction  ;  Libel. 

in  personam,  mesne  process  in.  Admiralty  Rule  2,  p.  317. 

for  salvage,  jurisdiction  of  courts  of  admiralty  over,  29. 

certain  property  in,  to  be  brought  into  court.  Admiralty  Rule  38,  p.  329. 

for  embezzlement,  &c.,  on  board  ship.  Admiralty  Rules  54r-58,  pp.  336- 
338. 

in  cases  of  seizure,  process  in,  Admiralty  Rule  9,  p.  319. 

when,  may  be  brought  by  seamen,  238. 

in  rem,  property  in  possession  of  third  person,  how  obtained  in,  Admiralty 
Rule  8,  p.  319. 

in  personam,  bail  how  taken  in.  Admiralty  Rule  3,  p.  318. 

in  personam,  arrest  and  bail  in.  Admiralty  Rule  47,  p.  332. 

in  admiralty  may  be  either  in  personam  or  in  rem,  253. 

for  salvage  may  be  instituted  against  whom  and  what,  253. 
SUNDAY, 

refusal  of  seaman  to  work  on,  231. 

SUNKEN  SHIP  OR  GOODS, 
when  derelict,  80. 

SUNKEN  VESSEL, 

raising,  a  salvage  service,  45. 

owner  not  bound,  in  collision,  to  go  to  expense  to  raise,  228. 
SUPERFLUOUS  SALVORS, 

master  may  refuse,  78,  85. 
SUPERSEDEAS, 

proceedings  in,  U.  S.  Rev.  Stat.  1007,  p.  344 ;  S.  C.  Rule  29,  p.  342. 

SUPPLEMENTAL  ANSWER.    See  Ausweb. 
SUPPLEMENTAL  LIBEL.    See  Libel,  Amendment  op. 
SUPPLIES, 

admiralty  has  jurisdiction  over,  28. 
SUPREME  COURT.    See  Appeal;  Pkohibition. 

Rules  of  Admiralty,  pp.  317-338. 

has  power  to  regulate  practice  in  admiralty,  252,  253. 

general  rules  applicable  in  admiralty.  Amendment  to  Rule  8,  p.  339 ;  No. 
9,  p.  339 ;  No.  12,  p.  340 ;  No.  24,  p.  341 ;  No.  29,  p.  342. 

as  to  reversal  of  decree  of  Circuit  Court,  309,  310. 

may  issue  writs  of  prohibition  to  District  Court.    (See  U.  S.  Rev.  Stat. 
688.) 

appeals  from  Circuit  Court  to,  25. 

should  determine  whole  merits  of  controversy,  309. 

agreement  cannot  give  jurisdiction  to,  25. 

has  jurisdiction  of  a  decree  pro  forma,  when,  25. 


INDEX.  501 

SURETY.    Sec  Security. 

new,  demanded,  when,  315 ;  Admiralty  Rule  6,  p.  319. 

must  justify  by  affidavit,  255. 

enforciug  final  decree  against.  Admiralty  Rules  3,  21,  pp.  318,  323. 

not  entitled  to  priority  over  previous  valid  mortgages,  187. 
SURGEON. 

is  a  mariner,  234. 
SURPLUS  AND  REMNANTS.    See  Remnaijts  and  Surpluses. 
SURPLUSAGE.    See  Scandal. 
SURRENDER, 

of  interest  in  vessel  and  freight,  admiralty  court  may  receive,  29. 
SURVEYS, 

jurisdiction  of,  admiralty  has,  29. 

T. 

TACKLE, 

within  admiralty  jurisdiction,  19. 

may  be  ordered  into  custody  of  marshal,  when.  Admiralty  Rule  8,  p.  319. 

TEMPORARY  ABANDONMENT.    See  Abandoxsient. 

interruption  of  navigation  of  a  river,  5. 
TENANTS  IN  COMMON.    See  Co-Tenants;  Part-Owner  ;  Ship. 
TEN  DAYS, 

allowed  before  action  should  be  brought  for  wages,  238. 

when  action  for  wages  may  be  brought  before  expiration  of,  238. 

when  costs  may  be  awarded,  though  action  brought  before  expiration  of, 
238. 
TENDER, 

to  libellant,  or  in  court,  how  made,  260. 

of  costs,  practice,  when  refused,  261. 

Sir  R.  Phillimore  on,  261. 

when  fair,  relieves  from  costs,  147. 

common  law  as  to,  not  recognized  in  admiralty,  261. 
TIDE, 

not  a  test  of  admiralty  jurisdiction,  4. 
TIMBER, 

salvage  of  drifting,  45. 
TIME, 

within  which  suits  may  be  prosecuted,  198. 

effect  of,  on  amount  of  salvage,  96-98. 

in  going  and  returning,  67. 

within  which  and  when  appeals  must  be  made,  302,  304,  305-307. 
TITLE  TO  PROPERTY, 

not  liable  to  salvage,  170. 
TORTS, 

are  within  admiralty  jurisdiction,  29. 


502  INDEX. 

TORTS  —  continued. 

between  foreign  subjects,  4. 
of  passengers,  33. 
locality  gives  jurisdiction  in,  15. 
wliat  are  included  in,  29. 

TOWAGE.    See  Tug. 

in  relation  to  salvage,  68,  70. 

a  lien  for,  195. 

no  lien  for  unexecuted  contract  for,  195. 

TRANSSHIPMENT, 

salvage  by,  42. 

TRESPASS, 

libeUant  not  liable  for,  when,  3. 

TRIAL.    See  Evidence  ;  Pbactice  and  Pleading. 
by  jury.  Act  of  1875,  p.  353. 
practice  in  Louisiana  district  as  to,  274-276. 
party  dissatisfied  may  apply  for  nevr,  276. 
continuance  of,  when  granted,  277. 

TRUSTEES, 

admiralty  courts  may  appoint,  when,  29. 

TUG, 

salvage  by,  46,  71-73. 

jurisdiction  over,  11. 

duty  of,  under  towage  contract,  69. 

does  not  warrant  fulfilment  of  contract,  69. 

obligation  of,  terminated  by  vis  major,  69. 

obligation  of,  terminated  by  unforeseen  danger,  69. 

when  damage  caused  by  misconduct  of,  69. 

instances  of  salvage  superseding  towage  by,  69. 

risk  to,  effect  of,  69. 

accident  before  commencement  of  towage  by,  69. 

bringing  barge  within  reach  of  fire  department,  entitled  to  salvage,  46. 

injury  to  vessel,  before  commencement  of  towage  by,  6. 

effect  of  concealment  of  vessel's  injured  condition,  on  claim  of,  71. 

low  rate  of  salvage  allowed,  when,  70. 

agreement  of,  with  vessel  in  distress,  71. 

when  no  agreement  with,  70. 

extra  services  by,  71. 

TUG-BOAT. 

jurisdiction  over,  11. 

TURNBULL,    MARTIN,  &    CO.    v.    THE    CITIZENS'   BANK    OF 
LOUISIANA,  xxxiii. 


INDEX.  503 

U. 
UNDERWRITER, 

appearance  by,  247. 

salvage  agreement  by  master  binds,  128. 

liable  for  seamen's  wages,  when,  237. 

on  acceptance  of  abandonment  may  become  dominus  litis,  303. 
UNEXECUTED  CONTRACTS, 

no  lien  lies  under,  195. 
UNFAIR  AGREEMENT.    See  Agreement. 

UNFORESEEN  DANGER, 

termination  of  towage  contract  by,  69. 
UNITED  STATES.    See  Comjossionebs  ;  Couets. 

salvage  on  goods  of,  170. 

property  of,  liable  to  salvage,  170. 

how  lien  on  property  of,  enforced,  49. 
UNLAWFUL  OBSTRUCTIONS  TO  NAVIGATION.    See  Navigation  ; 
Obstruction. 

UNSEAWORTHINESS, 

of  salving  vessel,  when  salvors  answerable  for  damage  through,  180. 

UNSKILFULNESS.    See  Collision  ;  Salvage. 
how  far  salvor  affected  by,  177,  178. 

in  leading  vessel  into  peril  as  great  as  that  from  which  rescued,  179. 
indulgence  for,  if  no  other  aid  at  hand,  178. 
of  salvors,  effect  of,  when  their  action  deters  competent  persons  from 

undertaking  the  services,  177. 
effect  of,  177,  178. 

diminution  of  salvage,  when  property  injured  through,  178. 
collision  between  vessels,  by,  179. 
of  salvors*  agent,  effect  of,  179. 
after  salvage  completed,  effect  of,  180. 

USAGE, 

evidence  of,  when  admissible.  272. 


V. 

VALUE.    See  Appraisement  ;  Stipulation. 

of  salved  property,  net,  how  ascertained,  107,  111. 

of  salved  ship  and  cargo,  shall  be  taken  at  the  port  into  which  the  ship  is 

carried,  106, 107. 
when  to  be  taken,  107. 
appraisement  best  evidence  of.  111. 
expenses  to  be  deducted  from,  107. 

saved  small,  and  services  great,  salvage  award  increased,  90. 
as  an  ingredient  of  compensation,  104. 
when  to  be  computed,  106,  107. 


504  INDEX. 

VALUE  —  continued. 

of  cargo,  effect  of,  on  agreement  for  fixed  sum,  112. 

of  salvors'  property,  how  ascertained,  111. 

of  property  risked  by  salvors,  as  affecting  salvage  award,  99. 

VERiriCATlON.    See  Oath. 

YESSEL.    See  Collision;  Lien;  Navigation;  Salvage;  Ship, 
what  is  a,  232.     (See  also  U.  S.  Kfiv.  Stat.  4612.) 
at  anchor,  214. 
overtaking  another,  217. 

VESSELS, 

actually  required,  salvage  award  iu  proportion  to  number  of,  85. 

VICE-ADMIRALTY  COURTS, 

colonial,  authority  of  practice  in,  20. 

riS  MAJOR, 

termination  of  towage  contract  by,  69. 
contract  of  seamen  dissolved  by,  56. 

riFA   VOCE, 

appeal  is  usually  taken,  though  sometimes  in  writing,  304. 

VOLUNTARY  SALVORS, 

efforts  of,  must  be  successful,  37,  39,  40. 

VOYAGE, 

definition  of,  235. 

penalty  for  omitting  to  begin,  235. 

seamen  discharged  by  deviation  from,  235. 

change  of  original,  is  a  deviation,  235. 

arrest  of  vessel  after  commencement  of  voyage,  250. 


W. 

WAGES.    See  Seamen. 

form  of  libel  for.  No.  14,  p.  378. 
freight  not  the  mother  of,  237. 
take  precedence  of  salvage,  when,  186,  187,  239. 
three  months'  extra,  when,  237. 
owners  personally  liable  for,  when,  238. 
seamen  have  threefold  remedy  for,  239. 
suit  for,  when  maintainable,  240. 
not  subject  to  garnishment,  when,  231. 

seamen's  claim  for,  is  a  personal  privilege,  and  not  assignable,  239. 
in  suits  for,  how  mariners  may  proceed.  Admiralty  Rule  13,  p.  321. 
proceedings  preliminary  to  commencement  of  suit  in  the  admiralty  for, 
238. 

WAITERS, 

male  or  female,  as  mariners,  241. 


INDEX.  605 

WAIVER, 

of  objections  to  subject-matter,  25. 

of  exceptious,  256,  308. 

of  maritime  lieu,  198,  249. 

when  delay  deemed,  249. 
WAR, 

foreign  ship  of,  salvage  by,  74. 
WARRANT.     See  Arrest. 

of  arrest,  seizure  by.  Admiralty  Rule  9,  p.  319. 

of  arrest  in  suits  in  penonam.  Admiralty  Rule  2,  p.  317. 
WAR-VESSEL, 

torts  of,  by  violation  of  neutrality,  29. 
WATCHMAN.     See  Keeper. 

services  of,  in  port,  do  not  create  a  maritime  lien,  205. 
WATER-CRAFT, ' 

admiralty  jurisdiction  over,  10. 
WHARE, 

contracts  for  repairs  at,  are  maritime,  194. 
WHARFAGE, 

claims  for,  are  cognizable  in  the  admiralty,  9,  32. 
WITNESSES.     See  Evidence. 
WOMAN, 

may  sue  in  admiralty  when  doing  mariner's  work,  234. 
WRECK  OF  THE  SEA, 

within  admiralty  jurisdiction,  19. 
WRIT  OF  PROHIBITION, 

Supreme  Court  may  issue  to  District  Court.    (See  U.  S.  Rev.  Stat.  388.) 
WRITS.    See  Attachment  ;  Execution  ;  Process. 

Y. 

YELLOW  FEVER, 

distress  caused  by,  on  vessel,  ground  for  salvage,  53. 


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